UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TREATISE 

ON    THE 

LAW  OF  SLANDER, 

LIBEL,   SCANDALUM   MAGNATUM, 

AND 

FALSE  RUMOURS; 

INCLUDING 

THE  RULES 

WHICH  REGULATE  INTELLECTUAL  COMMUNICATIONS, 

AFFECTING  THE  CHARACTERS  OF  INDIVIDUALS 

AND  THE  INTERESTS  OF  THE  PUBLIC. 

With  a  Description  of  the  Practice  and  Pleadings  in  personal 

Actions,  Informations,  Indictments,  Attachments  for 

Contempts,  fyc.  connected  with  the  Subject. 


BY  THOMAS  STARKIE,  ESQ. 

op  mncoln's-innj  barrister  at  law. 


"  Our  Law  in  this  and  many  other  respects  corresponds  rather  with  the  middle  age  of  Roman 
Jurisprudence,  when  Liherty,  Learning,  and  Humanity,  were  in  their  full  vigour,  than  with  the 
cruel  Edicts  that  were  established  in  the  dark  and  tyrannical  ages  of  the  ancient  Decemviri  or 
the  later  Emperors." — Blackstone's  Comm.  vol.  ivS'p.  151. 

"  The  Pleadings  of  the  Parlies  are  in  this  Action  much  to  be  heeded,  for  the 
Plaintiff  or  Defendant  either  of  them  in  this  may,  by  his  Omission  or  Commission, 
very  quickly  advantage  or  prejudice  himself,  and,  therefore,  they  must  be  very 
careful  herein." — Sheppard.     Actions  for  Slander,  p.  260. 


FIRST  AMERICAN  EDITION,  WITH  NOTES  AND  REFERENCES 
TO  AMERICAN  AND  THE  LATE  ENGLISH  CASES. 


BY  EDWARD  D.  INGRAHAM,  ESQ. 


I'l  BL1SHED  BY  GEORGE  LAMSON. 


.1.  &  J,  Harper,  Punters- 

1826. 


Southern  District  of  New~York,  ss. 

BE  IT  REMEMBERED,  that  on  the  20th  day  of  January,  in  the  fiftieth  year  o;' 
the  Independence  of  the  United  States  of  America,  George  Lamson,  of  the  said 
District,  has  deposited  in  this  office,  the  title  of  a  book,  the  right  whereof  he  claims 
as  proprietor,  in  the  words  following, to  wit: 

"  A  Treatise  on  the  Law  of  Slander,  Libel,  Scandalum  Magnatum,  and  False  Ru- 
mours ;  including  the  Rules  which  regulate  Intellectual  Communications,  affecting 
the  Characters  of  Individuals,  and  the  Interests  of  the  Public,  with  a  Description  of 
the  Practice  and  Pleadings  in  Personal  Actions,  Informations,  Indictments,  Attach- 
ments for  Contempts,  &c.  connected  with  the  subject.  By  Thomas  Starkie,  Esq. 
of  Lincoln's- 1 lm,  Barrister  at  Law.  First  American  Edition,  with  notes  and  refer- 
ences to  American  and  the  late  English  cases.     By  Edward  D.  Ingraham,  Esq." 

In  conformity  to  the  Act  of  Congress  of  the  United  States,  entitled,  "An  Act 
for  the  encouragement  of  Learning,  by  securing  the  copies  of  Maps,  Charts,  and 
Books,  to  the  authors  and  proprietors  of  such  copies,  during  the  time  therein  men- 
tioned." And  also  to  an  Act,  entitled,  "An  Act,  supplementary  to  an  Act,  enti- 
tled an  Act  for  the  encouragement  of  Learning,  by  securing  the  copies  of  Maps, 
Charts,  and  Books,  to  the  authors  and  proprietors  of  such  copies,  during  the  times 
therein  mentioned,  and  extending  the  benefits  thereof  to  the  aits  of  designing, 
engraving,  and  etching  historical  and  other  prints." 

JAMES  DILL, 
Clerk  of  the  Southern  District  of  New-York- 


T 
StZ1$s 


\ntt> 


TO 

THE  RIGHT  HONOURABLE 

EDWARD  LORD  ELLENBOROUGH, 

CHIEF  JUSTICE  OF  ENGLAND, 
&c.   Sic. 


My  Lord, 

I  have  the  honour  to  submit  to  your  Lordship 
an  humble  attempt  to  illustrate  an  extensive  and 
important  branch  of  English  Jurisprudence,  by 
reducing,  under  a  systematic  arrangement,  a  se- 
lection of  the  principal  decisions  relating  to  it, 
interspersed  with  the  dicta  and  opinions  of  many 
learned  and  experienced  Judges. 

In  the  execution  of  this  plan,  your  Lordship's 
judgment  (if  exercised  at  all  on  such  a  subject,) 
will,  I  fear,  detect  many  faults ;  my  regret  will  be 
severe,  should  their  number  or  their  quality  induce 
your  Lordship  to  repent  of  your  kind  permission 
to  inscribe  this  treatise  to  yourself. 


GViMra 


!\  DEDICATION. 

In  hopes  that  your  Lordship  will  long  enjoy  the 
high  honours  with  which  your  professional  career 
has  been  crowned,  in  the  full  possession  of  those 
faculties  in  which  the  nation  claims  so  large  an  in- 
terest, I  beg  leave  most  respectfully,  to  subscribe 
myself, 

Your  Lordship's  most  obedient, 

And  very  humble  Servant, 

THOMAS    STARKIE. 

0,  Searle- Street,  Lincoln's- Inn. 


TABLE  OF  CASKS 


CITED    BV 


THE  AMERICAN  EDITOR. 


A. 

Alderman  v.  French,  (1  Pick.  Rep.  1)           -  329.  338.  408 

Anderson  v.  Hamilton,  (8  Price,  244)  -  -           412 

Andreas  v.  Koppenheaffer,  (3  Serg.  &  Rawle,  255)  19.  36.  40.  61 

Andres  v.  Wells,  (7  Johns.  Rep.  260)            -  -  -           369 

Andrews  v.  Vanduzer,  (11  Johns.  Rep.  38)  -  139.  179 

Ashbell  v.  Witt,  (2  Nott  &  M'Cord's  Rep.  364)  -  -              47 

Atkinson  v.  Hartley,  (1  M'Cord's  Rep.  203)  -  21.  61.  276 

B. 

Backus  v.  Richardson,  (5  Johns.  Rep.  475)  -         -  113 

Barns  v.  Webb,  (1  Tyl.  Rep.  17)  -         -         .         .  329 

Beers  v.  Strong,  (Kirb.  Rep.  12)         -         -         -         -      36.  75 
Bell  v.  Bigg,  (4  Munf.  Rep.  260)  ....  270 

Binns  v.  M'Corkle,  (2  P.  A.  Bro.  Rep.  79)  -         -         -  213 

Bliss  v.  Lewis,  (2  Bay's  Rep.  204)       -  -         -         -  414 

Bloom  v.  Bloom,  (5  Serg.  &  Rawle,  391)     -         -  274.414 

Bornman  v.  Boyer,  (3  Binn.  515)        -         -         -         -    60.  294 
Brooker  v.  Coffin,  [5  Johns.  Rep.  188)         -         -  19.  28.  40 

Brooks  v.  Bemiss,  (8  Johns.  Rep.  356)         -         -         -  180 

Brown  v.  Croome,  (2  Stark.  Rep.  297)         -         -         -    61.242 

~  v.  Lamberton,  (2  Binn.  34)  .      -         -         -         -       28.  85 

v.  Mims,  (2  Const.  Ct.  Rep.  235)         ...  391 

Bufqrd  v.  M'Luny,  (1  Nott  &  M'Cord's  Rep.  268)         -  405.  410 
Burtchu.  Nickerson,  (17  Johns.  Rep.  217)  -         -         «  113 

Buys  v.  Gillespie,  (2  Johns.  Rep.  115)  ...  28 

Byron,  Lord,  v,  Dugdale,  (British  Trav.  Newspaper)    -  143 

C. 

Caldwell  v.  Abbey,  (Hard.  Rep.  530)  -  -       24.  75 

Cartwrightv.  Wright,  (5  Barn.  &  Aid.  615)  -         -  278 

.Cavev.  Sheler,  (2  Munf.  193)     -  -  284 


vi  NAMES    OF    CASES    CITED. 

Chaddock  v.  Briggs,  (13  Mass.  Rep.  252)     -  97 

Chapman  v.  Gillett,  (2  Conn.  Rep.  61)  19.  78 

v.  Smith,  (13  Johns.  Rep.  80)  -         -         -  76 

Cheatwood  v.  Mayo,  (5  Munf.  16)         ...  -  405 

Cheetham  v.  Tillotson,  (5  Johns.  Rep.  430)  -         -  416 

Chipmanr.  Cook,  (2  Tyl.  Rep.  456)  -  36.110.275.416,417 
Churchill,  Lord,  v.  Hunt,  (2  Barn.  &  Aid.  685.)    -         -  347 

Clason  v.  Gould,  (2  Caines's  Rep.  47)  ...  244 

Clinton  v.  Croswell,  (2  Caines's  R*p.  245)    -  245 

Clutterhuck  v.  Chatters,  (1  Stark.  Rep.  471)  -         -  352.  505 

Coffin  i..  Coffin,  (4  Mass.  Rep.  1)  -         -     182,183.411.414 

Coleman  v.  Southvvick,  (9  Johns.  Rep.  45)  -  -213.263.414 
Cook  v.  Barkley,  (1  Penn.  Rep.  169)   ....  213 

Cooke  v.  Maxwell,  (2  Stark.  Rep.  183)  ...  412 

Crookshank  t>.  Gray,  (20  Johns.  Rep.  345)  -  -  -  47.76 
Cummin  v.  Smith,  (2  Serg.  &  Rawle,  440)    -  387 

D. 

Davis  v.  Davis,  (lJSott  &  M'Cord's  Rep.  290)  -  115.  118.  291 

Delacroix  v.  Thevenot,  (2  Stark.  Rep.  63)  -  -  -  352 

Dexter  v.  Taber,  (12  Johns.  Rep.  240)       -  -  -  56. 80 

Dickinson  v.  Barber,  (9  Mass.  Rep.  225)     ...  171 

DodH  v.  Henry,  (9  Mass.  Rep.  262)     -         -  -  -  35.  207 

Dole  v.  Lyon,  (10  Johns.  Rep.  447)     -         .  -  -  213 

Dwinnells  v.  Aikin,  (2  Tyl.  Rep.  75)   -  -  47.  420 

E. 

Ebersol  v.  Krug,  (3  Binn.  555) 260 

Eden  v.  Legare,  (1  Bay's  Rep.  171)  -  21 

Edieu.  Brooks,  (Sup.  Ct.  Penn.  MS.)  -  -•  -  -61.81 
Elliott  v.  Ailsbury,  (2  Bibb's  Rep.  473)  -  -  -  19.28 
Else  v.  Ferris,  (Anth.  N.  P.  Rep.  23)         -         -         -   118.329 


Fairman  v.  Ives,  (5  Barn.  &  Aid.  642)  -         -   210.  326.  330 

Findley  v.  Bear,  (8  Serg.  &  Rawle.  571)     ...  80 

Finnerty-j.  Tipper,  (2  Camp.  Rep.  72)  -         -  -398.410 

Fishers.  Rotereau,  (2  M'Cord's  Rep.  189)  -         -  74 

Foot  v.  Tracy,  (1  John9.  Rep.  46)       ....  410 

Foote  v.  Bioren,  (8  Johns.  Rep.  50)  -         -         -         -  113 

Fowle  v.  Robbins,  (12  Mass.  Rep.  496)        -         -  47.  77 

Fowler  ft  war.  v.  Homer,  (3  Camp.  Rep.  294)      -         -  192.  232 


NAxUES    OF    CASES    CITED.  Vll 

Frederitze  v.  Odenwalder,  (2  Yeatcs,  243)    -         -         -  179 

Frisbie  v.  Fowler,  (2  Conn.  Rep.  707)         -  -  27 

G. 

Gidney  v.  Blake,  (11  Johns.  Rep.  54)           -         -         -  94.  288 

Gilbert  v.  Rodde,  (3  Bulstr.  Rep.  304)           -          -  78 

Godson  v.  Home,  (3  Moo.  Rep.  223)  -  210 

Grant  v.  Hover,  (6  Munf.  13) 329 

Gray  v.  Pentland,  (2  Serg.  &  Rawle,  23)       -  -  -186.193 

Green  v.  Long,  (2  Caines's  Rep.  91)     ....  74.76 

Grubbs  v.  Keyser,  (2  M'Cord's  Rep.  305)    -  271 

II. 

Hall  v.  Smith,  (1  Mau.  &  Selvv.  287)     -  117 

Hamilton  v.  Dent,  (I  Hayvv.  116)  -         -         -  -      47.  78 

Hancock  v.  Winter,  (2  Marsh.  503.  7  Taunt.  205)  271.  273 

Harding  v  Greening,  (1  Moo.  Rep.  477.  8  Taunt.  42)     -  371 

Harris  v.  Lawrence.  (1  Tvl.  Rep.  156)         ...  278 

Harris,  Esq.  v.  Huntingdon,  Esq.  (2  Tyl.  Rep.  124)  186.  260 

Harrison  v.  King,  (7  Taunt.  431.  4  Price,  46)       -         -       59.  73 
Hemmenway  v.  Woods,  (1  Pick.  Rep.  524)  -  37 

Herrick  v.  Lapham,  (10  Johns.  Rep.  281)     -  321 

Hersh  v.  Ringwal,  (3  Yeates,  510)        -    '     -         -    213.  275.  321 
Higgins  v.  Cogswell,  (4  Mau.  &  Selw.  369)  -  -         -  389 

Hodgson  v.  Scarlett.  (1  Barn.  &  Aid.  232)       -         -  207.  330 

Hogg  v.  Wilson,  (1  Nott  &  M'Cord's  Rep.  216)      -         -    24.416 
Hollingsworth  v.  Duane,  (Wall.  Rep.  77)      -  520 

Holme  v.  Lord  Bentinck,  (8  Price,  226.  4  Mov.  Rep.  563)        412 
Holmes  v.  Catesby,  (1  Taunt.  542)       -  341 

Hopkins  v.  Beedle,  (1  Caines's  Rep.  347)    -  22.  47.  74.  416 

Horner  v.  Marshall's  Adm.  (5  Munf.  466)     -  171 

Howard  v.  Stevenson,  (2  Rep.  Const.  Ct.  So.  Carol.  408)      32.  74 
Hoyle  v.  Young,  (1  Wash.  Rep.  152)  -         -         -  118.  291 

Huntr.  Bell,  (1  Bingh.  Rep.  212.)      -  -  120 

J. 

Jackson  v.  Stetson,  (15  Mass.  Rep.  49)  339.  347 

Janson  v.  Stuart,  (1  Tenn.  Rep.  748 )  -  -                  -           34 1 

Jarvis  v.  Hathaway,  (3  Johns.  Rep.  179)  ••                   -           189 

Johnsons.  Tait,  (6  Binn.  121)     -         -  -                       32 

K. 

Kean  v.  M'Laughlin,  (2  Serg.  &  Rawle,  469;        -         -  398 

Kennedy  v.  Gregory,  (1  Binn,  88)  -  213.  332 


Till  NAMES    OF    CASES    CITED. 

Kennedy -j.  Lowry,  (1  Binn.  393)         ...  -           271 

v.  Marsden,  (4  Mau.  &  Selw.  164)            -  -            297 

King,  The,  v.  Burdett,  (4  Barn.  &  Aid.  314)          -  55.  353.  57G 

v.  Carlile,  (3  Barn.  &  Aid.  167)            -  198.446 

v.  Creevy,  Esq.  (1  Mau.  &  Selw.  273)  183.  193 

v.  W.  Fleet,  (1  Barn.  &  Aid.  379)        -  199,  200 

„,  Harvey,  (3  Dow.  &  Ryl.  464)          -  -            467 

v.  Williams,  (5  Barn.  &  Aid.  594)        -  -            495 


L. 

Lane  v.  Applegate,  (1  Stark.  Rep.  97)  ...  326 

v.  Howman,(l  Price,  76) 216 

Larned  v.  Buffington,  (3  Mass.  Rep.  546)     -         -  402.  410 

Lewis  v.  Clement,  (3  Barn.  &  Aid.  702.  3  Brod.  &  Bingh.  297)   384 

v.  Few,  (1  Anth.  N.  P.  Rep.  75)  -         -  186.280 

v.  Hawley,  (2  Day's  Rep.  495)  -         -         -  117 

v.  Walter,  (4  Barn.  &  Aid.  605.  4  Dowl. &  Ryl.  8 10)  213. 389 

Lindsay  v.  Smith,  (7  Johns.  Rep.  360)  -  -      36.110.284 

Logan  v.  Steele,  (1  Bibb's  Rep.  593)  -         -         -  60 

Lyle  v.  Clason,  (1  Gaines's  Rep.  581)  -         -    131.  352.  416 

M. 

M'Alexander  v.  Harris,  (6  Munf.  465) 

M'CIurg  v.  Ross,  (5  Binn.  219)  - 

M'Connell  v.  M'Coy,  (7  Serg.  &  Rawle,  223) 

M'Corkle  v.  Binns,  (5  Binn.  340) 

M'Glaughry  v.  Wetmore,  (6  Johns.  Rep.  82) 

M'Gregorv.  Thwaites,  (4  Dowl.  &  Ryl.  695) 

M'Kinley  v.  Rob,  (20  Johns.  Rep.  356) 

M'Millan  v.  Birch,  (1  Binn.  178) 

Marshall  v.  Addison,  (4  Har.  &  M'Hen.  75) 

Martin  v.  Stillwell,  (13  Johns.  Rep.  275)      - 

May  v.  Brown,  (4  Dowl.  &  Ryl.  670) 

Mayrant  v.  Richardson,  (1  Nott  &  M'Cord's  Rep.  347) 

Miles  v.  Oldfield,  (4  Yeates,  423) 

Miller  v.  Kerr,  (2  M'Cord's  Rep.  285) 

v.  Miller,  (8  Johns.  Rep.  74)    - 

Mills  v.  Spencer,  (Holt's  N.  P.  Rep.  533) 
Milom  v.  Burnsides,  (1  Nott&  M'Cord's  Rep.  426) 
Morris  v.  Duane,  (1  Binn.  90)     - 

N. 

Neal  v.  Lewis,  (2  Bay's  Rep.  204)      - 
Xettlea  v.  Harrison,  (2  M'Cord's  Rep.  230) 


- 

74 

399 

.405 

- 

126 

295 

- 

- 

272 

26. 

340. 

366. 

376 

- 

- 

78 

295 

- 

213. 

216 

- 

- 

55 

189. 

324 

- 

- 

75. 

113 

- 

- 

36 

- 

- 

380 

.34 

V 

160. 

569 

- 

74 

- 

213. 

217. 

334 

- 

- 

61. 

271 

- 

- 

332 

6) 

. 

193 

- 

213. 

332 

24. 

416 

- 

■- 

36 

XAAIES    OF    CASES    CITED.  IX 

Nivenu.  Munn,  (13  Johns.  Rep.  48)  -         ...  77 

.Vorton  v.  Barnura,  (20  Johns.  Rep.  337)       -  244 

Nye  v.  Otis,  (8  Mass.  Rep.  122)  -         -         -         -     60.  271 

O. 

Oakley  v.  Farrington,  (1  Johns.  Ca.  129)     •         -  110.291 


Packer  v.  Spangler,  (2  Binn.  60)  22 

Patten  et  al.  v.  Gurney  et  al.  (17  Mass.  Rep.  186)         -  250 

Pearsons.  Pickett,  (1  M'Cord's  Rep.  473)  -          -         -  244 

Pelton  v.  Ward,  (3  Caines's  Rep.  73)           ...  78 

Pentersu.  England,  (1  M'Cord's  Rep.  14)     -  261 

People,  The,  v.  Crosswell,  (3  Johns.  Ca.  354)      -         -  493 

v.  Freer,  (1  Caines's  Rep.  484.  518)  520.  522 

v.  Rnggles,  (8  Johns.  Rep.  225)      -         -  437 

Pitt  v.  Donovan,  (1  Mau.  &  Selw.  639)           ...  205 

Power  v.  Miller,  (2  M'Cord's  Rep.  220)       -                   -  47.  73 

R. 

Republican  Calef,  (10  Mass.  Rep.  153)      ...  28 

v.  Clap,  (4  Mass.  Rep.  163)          -         -         -  569 

v.  Cobbett,  (3  Dall.  467,  3  Yeates,  93)           -  525 

v.  Davis,  (3  Yeates,  129)    -         -         -  179.  369.  376 

-j.Dennie,  (4  Yeates,  267)   -  468 

v.  Duane,  (1  Binn.  98)  525 

v.  Holloway,  (5  Binn.  517)  -  74 

v.  North,  (1  Binn.  97)           -  525 

v.  Oswald,  (4  Dall.  319)       .....  520 

T-.  Passmore,  (3  Yeates,  441)         ...  520 

v.  Powell,  (1  Dall.  47)          -  75 

v.  Sharpless,  (  2  Serg.  &  R.  91)     -         -448.450,451 

Robinson  v.  Jermyn,  (1  Price,  17)                 -         -         -  138 

Ross  v.  Pines,  (3  Call's  Rep.  568)       ....  205 

Rowe  v.  Roach,  (1  Mau.  k  Selw.  304)         ...  205 

Rue  v.  Mitchell,  (2  Dall.  58)      -                    -  47 

S. 

Sawyer  v.  Eiffeit,  (2  Nott  &  M'Cord's  Rep.  511)  -     61.  410 

Shaeffer  v.  Kintzer,  (1  Binn.  542)        -  -   19.  22.  47.  537.  416 

SharflV  The  Commonwealth,  (2  Binn.  514)  -  494.  560 

Sherutt  v.  M'Dowoll,  (Const.  Rep.  Treadw.  Edit.  35)    - 
Shephard  v.  Merrill,  (13  Johns.  Rep.  475)   - 
Shepherd -..Bliss,  (2  Stark.  Rep.  510)  -         *      ■  -  273 

Shock  v.  M'Chesney,  (2  Yeates,  473.  2  P.  A.  Bro.  65)      /4.  172. 
J    K  192.398 


X  NAMES    OF    CASES    CITED. 

Smith  v.  Carey,  (3  Camp.  Rep.  461)  -  2^5 

v.  Minor,  (Coxe's  Rep.  16)        -  f' 

..  Wood,  (3  Camp  Rep  323)    -         -  -            |5l 

Smithies  v.  Harrison,  (1  Lord  Raym.  727)  -  -          -            •"» 

Solomons  v.  Medex,  (1  Stark.  Rep.  191)       -  *** 

Southey  v.  Sherwood,  (2  Meriv.  Rep.  435)  -         -           143 

Southwick  v.  Stevens,  (10  Johns.  Rep.  443)  -    278.  376.  414 

Stafford  r.  Green,  (Uohns.  Rep.  505)         -  ?° 

Steele  v.  Southwick,  (9  Johns.  Rep.  315)     -  -             140.  492 

Sterling  v.  Adams,  (3  Day's  Rep.  312)           -  98 

Stevenson  v.  Hayden,  (2  Mass.  Rep.  408)     -  -         -      24.  7o 

Stokes  v.  Stackey,  (1  M'Cord's  Rep.  562)     -  80 

Stuart  v.  Harkins,  (3  Binn.  321)            ...         -  421 

v.  Lovell,  (2  Stark.  Rep.  93)     -          -  -    120.327.398 

Swearingen  i>.  Birch,  (4  Yeates,  322)  -         -  -         -            191 

Sumner  v.  Buel,  (12  Johns.  Rep.  476)          -  495 

T. 

Tatev.  Humphrey,  (2  Camp.  Rep.  73)  -         -           398 

Taylor  v.  Sturgineger,  (2  Const.  Rep.  367)  -              24.  416 

Tempest  v.  Chambers,  (1  Stark.  Rep.  67)    -  -                       80 

Thomas  v.  Croswell,  (7  Johns.  Rep.  272)    -  198.  295.  299.  398 

v.  Rumsey,  (6  Johns.  Rep.  27)        -  -            260 

Thorley  v.  Lord  Kerry,  (4  Taunt.  366)       -  138 

Thorn  v.  Blanchard,  (5  Johns.  Rep.  509)     -  -         -    186.  193 

Tracy  t>.  Harkins,  (1  Binn.  395,  n.)     -  .     74.272 

U. 

United  States  v.  Hudson,  (7  Cranch.  32)        -  452 


Van  Ankin  v.  Westfall,  (14  Johns.  Rep.  233) 
Van  Nessv.  Hamilton,  (19  Johns.  Rep.  367) 
Van  Rensellaer  v.  Dole,  (1  Johns.  Ca.  239) 
Van  Vechtenv.  Hopkins,  (5  Johns.  Rep.  211) 
Vaughan  v.  Havens,  (8  Johns.  Rep.  109) 
Vicku.Whitefield,  (2  Hayw.  222)       - 

W. 

Walcot  v.  Walker,  (7  Ves.  Jun.  1)      - 
Walker  v.  Winn,  (  8  Mass.  Rep.  246)  - 
Wallis  v.  Mease,  (3  Binn.  546)  - 
Walsh  v.  The  State,  (2  M'Cord's  Rep.  248) 
Walters  v.  Mace,  (2  Barn.  &.  Aid.  756) 
Walton  v.  Singleton,  (7  Serg.  &  Rawle,  451) 


19.21. 

329 

138.178. 

341 

51.86. 

110 

55.  244. 

295 

. 

47 

- 

410 

143 

- 

35 

- 

398 

266. 

280 

- 

271 

44.  64.  68 

NAMES    OF    CASES    CITEU.  XI 

Ward  v.  Clark,  (2  Johns.  Rep.  10)      -          -         -  22.  47.  78 

Warn  v.  Chadwell,  (2  Stark.  Rep.  457)          -  -           411 

Waterman  v.  Van  Benscotten,  (13  Johns.  Rep.  425)  -           420 

Watson  v.  Hampton,  (2  Bibb's  Rep.  302)     -          -  -      22.  4  - 

Wetmore  v.  Lyman,  (2  Conn.  Rep.  42)         -  7b 

Widrig?.  Oyer,  (13  Johns.  Rep.  124)            ...  19 

Williams  v.  Callender,  (Holt's  N.  P.  Rep.  307)     -  -           410 

v.  Faulder,  (cited) 410 

v.  Mayer,  (1  Binn.  92)           -  405 

Wilson  v.  Stephenson,  (2  Price,  282)  -  416 

Wolcott  v.  Hall,  (6  Mass.  Rep.  514)    -  408 

Wolf  v.  Rodifer,  (1  Harr.  &  Johns.  409)     -  272 

Wood  v.  Brown,  (6  Taunt.  196,  1  Marsh.  522)     -  266 

v.  King,  (1  Nott  &  M 'Cord's  Rep.  185)        -  -             21 

Wrights  Clements,  (3  Barn.  &  Aid.  603)    -  261 

Wyatt  v.  Gore,  (Holt's  N.  P.  Rep.  299)       -  351.  412 


ERRATA 

Page  138,  note  (1,)  the  last  sentence  should  be,  "  that  no  action  could  be  maintained  foi 
written  scandal,  which  could  not  be  maintained  for  the  words  if  they  had  been  spoken." 

Page  213,  note  (1,)  insert  the  word  "  he"  between  the  words  "  oral  slander,"  and  the  word 
"  if,"  which  immediately  follows. 

Page  128,  line  4,  dele  "  the  prejudice  from." 

Page  160,  line  19,  for  "loses"  read  "  is  prevented  from  succeeding  tc." 

Page  170,  line  18,  for  "  plaintiff's"  read  "  defendant's." 

Page  201,  line  18,  for  "  defendant"  read  "  plaintiff." 


NAMES  OF  CASES 


REFERRED    TO 


IN   THE  ENGLISH  EDITION 


153 
152 
459 
430 
119 
116 
561 
188 
189 


A. 

Abergavenny,  Lord,  v-  Cart- 
wright        - 

Abergavenny's,  Lord,  case 

Algernon  Sidney's  case   - 

Argyle  v.  Hunt 

Arne  v.  Johnson     - 

Arundell  v.  Short  - 

Asaph's,  Dean  of  St.,  case 

Ashby  v.  White 

Astley  v.  Young     - 

Austin,  Sir  J.  v.  Col.  Cul- 
pepper      -         -  133, 332 

Avarillo  v.  Rogers  -         271 


B. 


Baal  v.  Baggerly     -  48 

Baker  v.  Pierce  -  -  49,79 
Baldwin  v.  Elphinstone  353,  171, 

264 
Baldwin  and  wife  v.  Flower  165 
Balmerino,  Lord,  his  case  473 
Banister  v.  Banister  -  123 
Barbaud  v.  Hookham      -  175 

Barham's  case        -  294, 296 

Barnabas  v.  Traunter      -  24 

Barnes  v.  Bruddell  -         166 

Barrons  v.  Ball      -  282 

Barron  v.  Gibson  -  -  166 
Barrow  v.  Llewellyn  -  511 
Beauchamp,  Lord,  v.  Sir  R. 

Croft  -  193 

Beaumond,  Sir  Thos.  v.  Sir 

H.  Hastings  315 


Beere's  case     269,  278,  325,512 


Bell  v.  Byrne 
Bellingham  v.  Mynors 
Bendish  v.  Lindsey 
Bill  v,  Neale 
Bishops',  seven,  case 


589 

339 
■  35,318 

104 
351,555 
371,541 

124 


Beavor  v.  Hides 


-  66,418 


Bliss  v.  Stafford 
Blisset  v.  Johnson  271 

Belton,  Sir  Wm.  v.  Dean  140 

Bonham's,  Dr.,  case  -  526 
Boston  v.  Tatham  -         -  19 

Boulton  v.  Clapham  -  191 
Bradley  v.  Methwyn  -  133 
Bridge's  case  -         -  46 

Briggs's  case  -  93 

Brook  v.  Sir  Hen.  Montague  206 
Brookbard  v.  Woodley  -  360 
Brown  v.  St.  John  74 

Brownlovv's,  Dr.  -  -  311 
Buchanan's  case  -  -  359 
Buckingham's,  Duke  of,  case  151, 

153 
Buckley  v.  Wood  -  -  192 
Burges  v.  Boucher  -  50 

Burgis's  case  -         -         277 

Burnet  v.  Codman  -      .  287 

v.Wells      -  292,417 

Bushel's  case  -  -  417 
Button  v.  Hey  ward  16,  51, 281 
Byron  v.  Ernes       -         -         163 

C. 

Carr,  Sir  John,  v.  Hood  232,  593 
Carpenter  v.  Tarrant      -  ig 

Carslake  v.  Mapledoram  p« 


XIV 


NAMES    OF    CASES    CITED. 


Cary  v.  Pitt  -  -  -  361 
Castlemaine's,  Lord,  case  590 
Ceely  v.  Hoskins  47 

Chapman  v.  Lamphire  -  119 
Clark  v.  Price  -  -  426 
Clarke's,  John,  case  305,  475 
Cleaver  v.  Sarraude  -  210 
Clerk  v.  James  -  -  250 
Clissold  v.  Clissold  -         582 

Cobbett's  case  -  -  472 
Cockaine,  Lady,  her  case    32,  91, 

92 
Collins  v.  Malin     -         -  314 

Cook  v.  Bachelor  -         -         251 

v.  Field         -  179,592 

Cookson  v.  Castline  -  256 
Cooper  v.  Hawkswell     -  67 

Cooper  v.  Smith  -  -  282 
Cox  v.  Humphreys         -  37 

Coxeter  v.  Parsons  -  426 
Craft  v.  Boite  249,  298 

Crawford  v.  Middleton  -  214 
Croft,  Sir  Harbert,  v.  Brown    15, 

88 
Croft's,  Sir  Harbert,  case  90, 9 1 
Cromwell's,  Lord,  case  151,179 
Croppv.  Tilney     -         -  134 

Crosby's  case         -  359, 590 

Crownfield's  case  -  -  520 
Cuddington  v.  Wilkins     1 80,  349, 

586 
Curry  v.  Walter     -  412 

Sutler  v.  Dixon     -  J  91. 

D. 

Da  Costa  v.  Pym    -  362 

Davis  v.Gardiner  -  -  161 
Davis  v.  Lewis       -  118,  215 

Davis's,  Ann,  case  161,164,165 
Dawes  v.  Bolton     -         -  37 

Deacon's  case         -  250 

Dean's  case  -  527 

Delamore  v.  Hoskins  -  289 
Delany  v.  Jones     -         -  62 

Dibdin  v.  Swan  and  Bostock    120, 

239 
Dix  v.  Brooks  259 


Dobson  v.  Thornistone  -         120 
Dodd  v.  Robinson  -         313 

Dorcbester's,Marquisof,case  151, 
155,243,246 
Dorrell  v.  Grove    -  65 

Drake's,  Dr.,  case  -         267 

Drake  v.  Corderoy         -         290 
Du  Bost  v.  Beresford     -  153 

Dunman  v.  Bigg     -         -         210 


E. 


Earbury's,  Dr.,  case  -  546 
Eaton  v.  Allen  -  21,33,34 
Edmondson  v.  Stephenson  223 
Edwards's  case       -         -  18 

Edwards,  Dr.,  v.  Dr.Wooton  131 
Elborow  v.  Allen  -  -  159 
England  v.Bourke  -         179 

Entick  v.  Carrington  and 

others        -  546 

Evans  v.  Brown     -  427 


FalkJand,  Lord,  v.  Phipps       150, 

156 
Feise  v.  Linder  -  -  586 
Finnerty  v.  Tipper  593,  594 

Fleetwood,  Sir  Miles,  v.  Curl     95, 

305 
Flowers's  case       -  116 

Flower  v.  Pedley  -  -  275 
Ford  v.  Bennet  -  -  269 
Ford  v.  Brooke  -  -  248 
Foster  v.  Browning  -  45,  284 
Franklin's,  Richard,  case  472 
Freeman  v.  Norris  245,  246 

Fish  v.  Thorowgood       -         344 


G. 


Gainford  v.  Tuke  -         -  J  9 

Garrels  v.  Alexander      -         366 
Gerard  v.  Dickenson      159,  220, 

203 
Gerard,  Sir  C,  his  bailiff's 

case  334 


NAMES'    OF    CASES    CITED. 


XV 


Girdwood's  case     -         -  404 

Gobbett's  case        -  427 

Gordon's,  Lord  George,  case  483 

Goulston  v.  Wood  -         -  415 

Greaves  v.  Blanchett       -  J  64 

Greenfield's  case  -  -  107 
Gremare  v.  Le  Clerc  Bois 

Valere  393 

Grove  v.  Hart        -         -  251 

Gurnett  v.  Deny  -         -  78 

Guy  v.  Livesey      -         -  252 

H. 

Halford  v.  Smith  -  -  423 
Hall  v.Warner       -  139,420 

Hammond  v.  Kingsmill  -  104 
Harding  v.  Bulman  -  185 

Hare  v.  Meller  -  -  194 
Harman  v.  Delany  -         177 

Hargrave  v.  Le  Breton  -  211 
Harper,  Sir  J.,  v.  Francis 

Beaumond  -         -         111 

Harrison  v.  Thornborough      51, 
63,  119,290 
Hart's  case    -  -         -         280 

Hartley  v.  Herring,  165,  325 

Harvey  v.  Chamberlayne  288 
Harvvood  v.  Sir  J.  Astley  326,  586 
Hawkes  v.  Hawkey  291,296 

Hay  ward  v.  Naylor         -  61 

Helly  v.  Hinder  -  -  292 
Heriot  v.  Stewart  -  120,239 

Heusey's,  Dr., case  -  359 
Hext  v.  Yeoman     -         -  59 

Hicks's,  Sir  Baptist,  case        132, 
509, 524, 588 
Hilsden  v.  Mercer  -         343 

Hinds  v.  Thomson  430 

Holland  v.  Stoner  -  -  45 

Hollis,  Sir  John,  v.  Briscow     104 
Holt  v.  bcholefield      40,  77,  295, 
•  297,416,418 

HookdrV.  Tucker  -         318 

Home  v.  Powell    -         -  66 

Howe  v.  Prinn        -  102,  104 

Hoskins  v.  Ridgeway  -  245 
Humphreys  v.Stanfield  122,125 
Hunt  v.  Thimblethorpe  -  61 


I.  &J. 

Jacob  v.Mills         -         -  71 
J' Anson  v.  Stuart  -    96,  134, 17S 

Jerome,  Miss,  her  case  -  537 

Johns  v.  Gittens     -         -  338 

Johnson,  W.,v.  Bewick  430 

v.  Evans  -         -  230 

Jones  v.  Heme      -         -  23 

Ireland  v.  Blockwell       -  325 

K. 

Kerle,  Sir  J.,  v.  Osgood  105 

Kerry,  Lord,  v.  Thorley  587 
King  v.  Lake         -   134,  187,  345 

Kinnersleyv.  Cooper      -  336 
Knightley,  Sir  John,  v. 

Marrow      -  94 

Knobell  v.  Fuller  -         -  405 


Lake  v.  Hatton 

178 

Lamb's  case            -  264,  353, 

511 

Lancaster  v.  French 

114 

Lawrence  v.  Woodward 

94 

Layer's  case 

359 

Leach's  case 

542 

Legate  v.  Wright   - 

429 

Le    Merchant,  Attorney- 

General  v.          -           365, 

383 

Lewknor  v.Cruchley*     -     22,34 

Leicester's,  Earl  of,  case  152, 

,407 

Lincoln's,  Earl  of,  case  - 

150 

Lowry  v.  Aikenhead 

229 

M. 


Macclesfield's,  Earl  of,  case  243 

Macdougall  v.  CJaridge  -  209 

Maitland  v.  Goldney  -  250 

Manning  v.  Avery  -  159 

Mason  v.  Jennings  -  134 

Mason  v.  Thomson  -  49 

Matthews  v.  Cross  -  161 

Mayne  v.  Digle      -  -  .38 

Meade  v.  Daubigny  398 


XVI 


-NAMES    OF    CASES    CITED. 


Med h u rst  v.  Balaam  -  165 
Metcalfv.  Markham  -  246 
Middleton's,  Dr.,  case     -  521 

Moises,  Dr.,  v.  Dr.  Thornton  384 
Monke  v.  Butler     -  394,  395 

Moore,  Sir  George,  v.  Foster  35 
Moore  v.  Meagher  -  165 

Mordant,  Lord,  v.  Bridges  153 
Mordington's,  Lord,  case  212 

Morris  v.  Langdale  117,  342 

Morrison,  Dame,  her  case     301, 

318 
Mors  v.  Thacker  -  -  267 
Mullet  v.  Hulton    -  352,  404 

Muney's  case  89 

N. 

Nelson  v.  Smith  -  -  291 
Nelson  v.  Hawkins,  Dean  of 

Chichester  -         -  426 

Neve  v.  Cross  93 

Newman  v.  Smith  -  258,  259 

v.  Bailey  -         324 

Newton  v.  Stuhbs  -  -  2G9 

Norfolk,  Duke  of,  v.  Alder- 
ton    -         -         -  -  246 
Northampton's.  Earl  of,  case   61, 
179,  213,215 
Northampton,  John  de,  his 

rase  -         -  513,  525 

O. 

O'Connor's  case  -  -  359 
Ogden  v.  Turner  -  15,39,  165 
Onslow  v.  Home  -     40, 103,  106 


Paine"s,  Samuel,  case      -  518 

Peake  v.  Oldham  50,  60,  82,  158, 
167,283,300,  321 
Peachum,  his  case  -         4a9 

Peard  v.  Jones  -  -  115 
Pellier,  Jean,  his  case  -  484 
Pembroke,  Earl  of,  v.  Staniel  J  55 
Penfoldv.Westcote  -  408 
Phillips  v.  Jansen  -         -  112 

Pickering,  Lewis,  his  case        509 


Pickford  v.  Gutch  -  386 

Pincknevv.  Collins  -         245 

Plunketfv.  Cobbett  127,  130 

Portman,  Sir  H.  v.  Stowell  39 
Powel  v.  Plunkett  180,232,591 
Power  v.  Shaw       -  430 

Preston's,  Lord,  case  -  359 
Prynne,Wm.,  his  case  -  578 
Purdy  v.  Stacey      -         -  36 

Pyne's,  Hugh,  case  -         266 

R. 

Radcliffe,  Lady,  v.  Shubly  271 
Rain  v.  Langley      -         -  192 

Ray's,  Lord,  case  -         -         360 
Redman  v.  Pyne     -         -         134 
Revett  v.  Braham  -         -         360 
Rex  vel  Regina  v.  Lord  Abing- 
don    183,197,240,209,223 

v.  Alderton    -         -         295 

v.  Almon       -  240, 369 

v.  Archer      -  574,  575 

v.  Bagg  -  46 

v.  Bailey       -  -         212 

v.  Ball  -  593 

v.  Bale  -         -         540 

v.  Beare,  or  Beere  269, 276, 

325 

v.  Bedford     -         -         454 

v.  Beech        -  -         143 

v.  Beere.    See  R.  v. 

Beare        -         -         -         509 

v.  Berry        -         -         271 

v.  Bickerton  177,  536 

v.  Brereton  -         -         265 

v.  Carter      -         -         516 

v.  Cator         -  368,  612 

v.  Chrichley  -         491 

v.  Clark  -  305,470,558 

v.  Clendon     -  -         438 

v.  Cobbett     -         -         472 

v.  Coombs     -         -         395 

v.  Crownfield  -         520 

v.  Sir  T.  Culpepper       358 

v.  D'Eon       -  482 

v.  Derby       -         -         540 

v.  Dodd  368 

v.  Dormer     -         -         539 

v.  Dr.  Drake    270,  277,  280 


NAMES    OF    CASES    CITED. 


XVII 


v.  Enes 
v.  Fisher 
v.  Franklin    - 
v.  Fuller 
v.  Gird  wood 


536 
199 
472 
270 
401 


v.  Lord  George  Gordon   483 
v.  Griffin       -  596,147 

■  v.  Hall  -  438,  572 
•  v.  Higgins      -         -         491 

v.  Holland     -  534 

v.  Holt  -         -  572 

■  v.  Home     51,315,319,327 

■  v.  Jenneauror Jenour    212, 

536,  596 
-  v.  Hon.  Robt.  Johnson    370, 
371,372,373 


v.  Jolliffe 

v.  Kendal 

v.  Kinastou     - 

v.  Knell 

v.  Sir  Edward  Lake 

v.  Lambert  and  Perry 


539 
596 
541 
515 
149 
550, 
572 

v  Langley      -  491,  526 

v.  Lawrence  -  -  470 
v.  Lofield       -         -  198 

v.  Matthews  -         306 

v.  Mayer  and  Dowling  521 
v.  Dr.  Middleton  -  521 
v.  Miles  -         -         540 

v.  Nun  -        -         594 

v.  Nutt  -         -         369 

v.  Orrae  -  -  595 
v.Osborne  -  -  495 
v.  Owen  -  -  503 
v.  Paine         -  511,  572 

v.  Peachum  -         -         459 

•  v.  Pearce 

■  v.  Jean  Peltier 

■  v.  Perry  and  another 

•  v.  Phillips 
-v.  Pinkerton 

■  v.  Pocock 

-  v.  Rayner 

■  v.  Roberts     - 

-  v.  Salisbury  - 

-  v.  Sharpe 

-  v.  Sharpness 


383 
484 
465 
491 
574 
532 
535 
534 
592 
531,542 
574 
3 


177. 


-  v.  Shipley,  Dean  of  St. 
isaph        -  583 

-  v.  Smith         -  -         594 

-  v.  Dr.  Smollet  -         532 

-  v.  Sontherlon  -  491 
-v.  Staples      -  -         531 

-  v.  Stockdale  -  480 
-v.Summers  -  524,548 
_  v.  Taylor       -  637 

-  v.  Thicknesse  -         532 

-  v.  Thomson  -         555 

-  v.  Topham    -  376,  493 

-  v.  Vint           -  -         483 

-  v.  Waddington  -  487 
-v.  Walden  -  -  595 
-v.Walter      -  -         594 

-  v.  Waring  and  wife  325, 407 


—  v. 

—  v. 

—  V. 

—  V. 

—  V. 

—  V. 

—  V. 

—  V. 


372 

532 

536 

534 

540 

544 

194,582 

441,442 

578,441 

361 

241,543,562 

194 

595 

272 

417 

19,54,67, 

299 

Rogers  v.  Sir  Gervase  Clifton  225 
Rogers  v.  Gravat  38 

Ross  v.  Lawrence  -         310 

Russel  v.  Come     -  256,  257 

Russel,  Sir  Win.  v.  Ligon  36 

Russel  v.  Macquister       39S,  402 

S. 

Salter  v.  Brown      -  -           25 

Sandwell  v.  Sandwell  -         351 

Savage  v.  Robery  -  306,  314 

Saville  v.  Jardine    ♦  114,  119 

Saville  v.  Roberts  -  -         160 

Scoble  v.  Lef  •           39 


v.  Watson 

Watson  and  others 

Webster    - 

White  and  Hart 

Willet 

Wilkes 

Williams 

Wilson 

Withers 

v.  Woolston 

v.  Woodfall 

v.  Wright 

v.  Wrightson 

v.  Young 

Rich  v.  Holt 
Roberts  v.  Campden 


xviu 


NAMES    OF    CASES    VLTEiJ. 


Seaman  v.  Bigg 
Searle  v. Williams  - 
Seizure  of  papers,  case 
Shaftesbury's,  Lord,  case 
Shalmer  v.  Foster 

Foster  and  wife 


108 
253 
358 
246 
290 
298 
78 
359 
286 
15,142 

124, 323 
251 
30 
254 
232 
329 

53,  206 


Shaw  v.  Thompson 

Sidney's  case 

Skutt  v.  Hawkins  - 

Smale  v.  Hammon 

Smead  v.  Badley     - 

Smith  v.  Croker    - 

v.  Flynt 

■  ■   —  v.  Hixon 

— —-  v.  Hodgkins   " 

■ •  v.  Richardson 

v.  Spooner   - 

v.Taylor  126,392,396,397 

v.  Ward        -  -         285 

v.  Wisdome  -          59 

Snagg  v.  Gee          -  70,  309 

Snell  v.  Webling .   -  94 

Snowde,  SirR.  v.  -  -         284 

Somers  v.  House    -  -          26 

Speed  v.  Parry       -  -           65 

Stamp  v.  White      -  69 

Stanhope  v.  Blith  -  -           14 

Stanton  v.  Smith     -  -         293 

Stirley  v.  Hill         -  *           62 

Stone  v.  Smallcombe  -          32 

Strachey's  case      -  -         264 

Stranger  v.  Searle  -        361 

Styles  v.  Nokes      -  -         2*5 

Subley  v.  Mott        -  -         262 

Sutton  v.  Johnstone  -         319 
Swithin  and  wife  v.  Vincent 

and  wife     ...         262 

Sydenham's,  Sir  John,  case       57 

292.  294 

T, 

Tabart  v.  Tipper     120,  238,  328 

Talbot's  v.  Case     -  -           71 

Tassau  v.  Rogers  -  -         120 

Tate  v.  Humphreys  -         593 

Terry  v.  Hooper   -  -         109 

Thompson's  case  -  552 

TibboH  v.  Havnes  32 


Tindall  v.  Moore    -  299 

Toddv.  Redford     -         -         258 
Townsend,  Lord,  v.  Dr. 

Hughes      -         -     7,  157,  414 
Turner  v.  Stirling  -         -  124 

Tutchin's  case  306,  470,  557 

Tuthill  v.  Milton     -  313,314 

Tutty  v.  Alewin      -         -         116 

U.  L  V. 

Underwood  v.  Parkes  330,  332 
410,412 

Upsheer  v.  Betts   -  -         343 

Upton  v.  Pinfold     -  -           60 

Vaughan  v.  Ellis     -  -         123 

v.Leigh  -  -         123 

Vicars  v.  Wilcocks  -         167 

Villers  v.  Monsley  -         135 

Vint,  John,  his  case  -         483 

W. 
Waddington's  case  -         487 

Walden,  Sir  Lionel,  v.  Mitchell  38 
Walmesley  v.  Russell      -  16 

Walter  v.  Beaver  -         -  81 

Ward  v.  Reynolds  -  51 

Warwick,  Earl  of,  his  case      589 
Waterfield  v.  Bishop  of  Chi- 
chester     -         -         -         197 
Weatherstone  ?.  Hawkins       223, 

399 
Webb  v.  Poor         -         -  71 

Weller  v.  Baker    -         -         250 
Weston  v.  Dobniet  -         201 

Wetherell  v.Clerkson.    -         323 
Wicks'scase  -         -  34 

Wilkes's  case         -         -         461 
Wilner  v.  Hold       -  283,  295 

Winchester's,  Lord,  case  152 
Wiseman  v.  Wiseman  94,  221 
Woolnoth  v.  Meadows  54,  61,67, 
214,216,301,  337 
Wyld  v.  Cookman  -         -         340 


Y. 


Yeoman  Hext  v. 
Young  v,  Pridd 


59 
253 


Z. 


Zenobio  v.  Axtell    2«7, 319, 346 


INTRODUCTION 


Injuries  which  exist,  independently  of  the  viola- 
tion of  any  previous  compact,  are  either  forcible  in 
their  nature,  where  the  means  used  are  purely  me- 
chanical, or  intellectual,  where  the  wrong  is  com- 
pleted by  the  mere  communication  of  certain  ideas. 

The  sources  of  these  two  kinds  of  injury  are  so 
remote  and  characteristic,  as  to  induce  a  mere  theo- 
retical inquirer  to  conclude  that,  in  any  given  sys- 
tem, the  laws  relating  to  them,  whether  remedial 
or  prohibitory,  would  at  the  same  period  approach 
nearer  to  perfection  in  the  first  instance  than  in  the 
second. 

The  comparative  imperfection  of  the  laws  re- 
lating to  the  latter  division,  is  suggested  principally 
by  two  considerations — the  want  of  early  expe- 
rience, and  the  intrinsic  difficulty  of  the  subject. 

In  the  progress  of  a  nation  from  a  state  of  rude- 
ness to  civilization,  it  is  natural  to  suppose,  that  the 
protection  of  the  persons  and  property  of  indivi- 
duals from  actual  violence  would  be  the  first  and 
most  important  object  of  legislation. 

Mere  intellectual  injury  is  of  too  abstracted  a 
nature  to  invite  early  attention,  and  the  necessity 
of  prescribing  restraints  to  any  considerable  extents 


XX  INTRODUCTION. 

would  not  obtrude  itself  until  society  had  begun  to 
assume  a  complicated  form.  This  necessity  has  its 
origin  chiefly  in  the  various  distinctions  and  refine- 
ments which  prevail  in  the  maturer  stages  of  so- 
ciety :  previous  to  their  introduction,  and  particu- 
larly whilst  the  art  of  writing  was  either  altogether 
unknown,  or  confined  to  a  few,  the  injury  could  sel- 
dom extend  beyond  mere  personal  reflections  and 
abuse  ;  and  instances  even  of  this  description  would 
be  the  less  frequent,  from  the  probability  that  the 
offended  party,  in  the  absence  of  a  competent  tri- 
bunal, to  which  he  might  appeal,  would  redress  his 
own  wrongs,  and  retaliate  by  acts  of  personal  vio- 
lence. Reputation  itself,  considered  as  the  object 
of  injury,  owes  its  being  and  importance  chiefly  to 
the  various  artificial  relations  which  are  created  as 
society  advances. 

The  numerous  gradations  of  rank  and  authority, 
the  honours  and  distinctions  extended  to  the  exer- 
tion of  talent  in  the  learned  professions,  the  emolu- 
ments acquired  by  mechanical  skill  and  ingenuity, 
under  the  numerous  subdivisions  of  labour,  the  in- 
crease of  commerce,  and  particularly  the  substitu- 
tion of  symbols  for  property  in  commercial  inter- 
course— all,  in  different  degrees,  connect  themselves 
with  credit  and  character,  affixing  to  them  a  value, 
not  merely  ideal,  but  capable  of  pecuniary  admea- 
surement, and  consequently  recommending  them 
as  the  proper  objects  of  legal  protection. 

The  difficulties  to  be  encountered  in  framing  such 
laws,  is  a  further  reason  for  their  imperfection;  their 
subject  matter  is  more  subtle  and  refined,  and  does 
not  admit  of  the  broad  and  plain  limits  and  dis- 


INTRODUCTION.  XX  J 

Unctions  which  may  be  established  in  respect  of 
forcible  injuries  ;  for  instance,  in  the  case  of  battery 
of  the  person,  the  law  can,  without  hesitation,  pro- 
nounce, that  any,  the  least  degree  of  violence  shall 
be  deemed  illegal,  and  entitle  the  complainant  to 
his  remedy  ;  but,  communications  concerning  repu- 
tation cannot  be  so  prohibited  ;  every  day's  conve- 
nience requires,  that  men,  and  their  affairs,  should 
be  discussed,  though  frequently  at  the  hazard  of 
individual  reputation  ;  and  it  conduces  mainly  to  the 
ends  of  morality  and  good  order,  to  the  safety  and 
security  of  society,  that  considerable  latitude  should 
be  afforded  to  such  communications.  The  dread  of 
public  censure  and  disgrace  is  not  only  the  most 
effectual,  and  therefore  the  most  important,  but  in 
numberless  instances  the  only  security  which  society 
possesses  for  the  preservation  of  decency  and  the 
performance  of  the  private  duties  of  life. 

The  law  may,  indeed,  define  particular  offences, 
and  diminish  their  frequency  by  the  threat  of  punish- 
ment; but  it  cannot  define,  and  therefore  cannot 
compel,  an  observance  of  the  duties,  upon  the  dis- 
charge of  which  the  happiness  of  the  communhty 
most  essentially  depends.  It  is  possible,  in  short, 
for  a  strict  observer  of  every  legal  enactment  to  be 
destitute  of  every  honourable  feeling  and  principle, 
and  utterly  unfit  for  supporting  any  useful  relation 
to  the  society  in  which  his  existence  is  tolerated. 

There  are,  it  is  true,  other  and  strong  motives  for 
good  conduct ;  but,  however  powerful  such  are,  or 
ought  to  be,  common  experience  proves,  that  their 
practical  operation  upon  the  mass  of  mankind,  is 
weak  when  compared  with  the  love  of  character, 


XXil  INTRODUCTION. 

and  strongly  suggests,  even  to  a  superficial  observer, 
the  state  of  things  which  would  ensue  were  praise 
and  blame  to  become  alike  indifferent.  Hence  it  is 
that  the  very  liability  of  reputation  to  public  censure 
tends,  in  a  very  considerable  degree,  to  the  pre- 
servation of  its  purity. 

Again,  this  privilege  is  important,  not  only  as  it 
diminishes  the  number  of  delinquents,  but  as  it 
abridges  their  power  of  effecting  mischief,  since  to 
expose  bad  intentions,  is  the  surest  step  towards 
preventing  their  execution.  It  seems,  indeed,  to 
be  just  as  much  a  matter  of  moral  obligation  to  ad- 
monish an  individual  against  the  malpractices  from 
which  he  is  likely  to  suffer,  as  to  apprize  him  that 
he  is  unwarily  approaching  the  edge  of  a  precipice  ; 
but  it  is  impossible  to  contend,  that  a  law,  control- 
ling the  exercise  of  any  moral  feeling,  can  consist 
with  reason  and  good  policy. 

In  addition  to  this,  from  the  very  nature  of  the 
case,  such  a  prohibition  would  be  in  a  great  mea- 
sure nugatory ;  the  passion  for  communication  is 
too  powerful  to  be  extinguished  by  any  penal  enact- 
ments, though  the  attempt  to  enforce  them  would 
materially  impede  and  embarrass  the  ordinary  inter- 
course and  business  of  society. 

So  with  regard  to  matters  of  public  concern :  the 
cause  of  good  government,  of  religion,  or  science, 
may  sometimes  partially  suffer  from  the  propaga- 
tion of  wilful  misrepresentation  and  the  dissemina- 
tion of  vicious  principles,  yet  it  can  scarcely  be 
doubted  that  these  very  interests  are  best  consulted 
by  permitting  free  inquiry  for  the  attainment  of 
truth  and  dispersion  of  error.    The  professed  end 


INTRODUCTION.  XXlll 

and  object  of  every  political  institution,  is  the  ad- 
vancement of  the  public  welfare,  of  every  philo- 
sophical system,  the  extension  of  human  know- 
ledge. Whoever,  therefore,  fairly  points  out  a  de- 
fect, or  error,  in  the  one  case  or  the  other,  necessa- 
rily confers  a  benefit  on  society,  since  he  suggests 
the  means  by  which  its  condition  may  be  improved. 
To  interdict  all  discussion  on  such  subjects,  would 
be  to  embrace  one  of  these  alternatives — either 
indiscriminately  to  reject  the  advantages  to  be  ex- 
pected from  the  future  exertion  of  talent,  aided  by 
experience,  or  unwisely  to  assume  the  present  state 
of  things  to  be  so  perfect  as  to  exclude  any  altera- 
tion for  the  better. 

The  convenience,  however,  of  society,  undoubt- 
edly requires  that  some  limit  should  be  prescribed 
to  communications  affecting  the  reputation  of  in- 
dividuals, and  the  general  interests  of  the  com- 
munity. 

The  means  which  have  been  invented  for  the 
transmitting  and  perpetuating  ideas,  otherwise  fleet- 
ing and  perishable,  are  convertible  into  the  power- 
ful instruments  of  wanton  mischief.  The  safety 
of  the  public  may  be  undermined  by  the  diffusion 
of  vicious  principles,  artful  calumnies,  or  obscene 
ribaldry ;  its  peace  disturbed  by  acts  of  outrage, 
inflicted  in  revenge  for  personal  reflections  and 
affronts ;  the  happiness  and  prosperity  of  the  indi- 
vidual impaired  by  imputations  disgracing  him  as  a 
man,  and  depriving  him  of  the  comforts  of  society  ; 
or  affecting  his  credit  and  abilities  in  any  particular 
character,  and  excluding  him  from  the  enjoyments 


XxiV  l.NTllODUCTlOK- 

of  the  honours  and  emoluments  incidental  to  hi^ 
situation  in  life. 

Since  experience  proves,  that  such  may  be  the 
fatal  consequences  of  malice  thus  exerted,  the  means 
by  which  they  are  effected  are  properly  the  object 
of  legal  coercion  and  restraint. 

The  difficulty,  then,  is  obvious  ;  it  consists  in 
laying  down  plain  intelligible  rules,  by  which  the 
privilege  of  communication  is  to  be  limited  and  de- 
fined, and  in  so  adjusting  the  boundaries,  that  the 
common  concerns  and  ordinary  transactions  of  life 
may  not  be  fettered  by  irksome  and  unnecessary 
restraints;  that  every  member  of  the  community 
may  feel  himself  at  liberty  to  give  a  fair  and  honest 
opinion  upon  every  subject  in  which  he  possesses 
an  interest,  without  the  apprehension  of  a  suit  or 
prosecution,  and  yet  that  the  impunity  shall  not 
be  extended  to  publications  maliciously  contrived 
for  the  purpose  of  public  or  of  private  mischief. 

From  this  difficulty,  as  far  at  least  as  relates  to 
political  and  theological  topics,  the  awkward  expe- 
dient of  subjecting  the  press  to  the  control  of  a 
licenser  owes  its  origin — a  measure  scarcely  plausi- 
ble even  in  its  exterior,  and  replete  with  mischief 
and  absurdity.  The  advantage  to  the  community 
would  be  infinite,  could  any  organ  of  communication 
be  discovered,  which  would  faithfully  transmit  to  the 
public  every  sentence  capable  of  improving  and 
delighting,  but  repress  every  gross  and  pernicious 
sentiment.  The  difficulty  consists  in  discovering 
such  a  literary  alembic.  In  whom  are  united  the 
talents  requisite  for  the  task  ?  Does  the  possessor 
of  them  superadd  an  integrity  and  impartiality  liable 


INTRODUCTION.  XXV 

to  no  influence,  prejudice,  or  bias  ?  Who  is  compe- 
tent to  judge  of  such  high  qualifications  ?  Where 
shall  the  power  of  appointment  reside  ? 

A  writer,*  no  less  remarkable  for  the  acute- 
ness  of  his  observation  than  for  the  energy  of  his 
language,  has  thus  expressed  himself  upon  the 
subject. 

"  If  nothing  may  be  published  but  what  civil 
authority  shall  have  previously  approved,  power 
must  always  be  the  standard  of  truth :  if  every 
dreamer  of  innovations  may  propagate  his  projects, 
there  can  be  no  settlement :  if  every  murmurer  at 
government  may  diffuse  discontent,  there  can  be 
no  peace  :  and  if  every  skeptic  in  theology  may 
teach  his  follies,  there  can  be  no  religion.  The 
remedy  against  these  evils  is  to  punish  the  authors, 
for  it  is  yet  allowed,  that  every  society  may  punish, 
though  not  prevent,  the  publication  of  opinions 
which  that  society  shall  think  pernicious  :  but  this 
punishment,  though  it  may  crush  the  author,  pro- 
motes the  book;  and  it  seems  not  more  reasonable 
to  leave  the  right  of  printing  unrestrained,  because 
writers  maybe  afterward  censured,  than  it  would 
be- to  sleep  with  doors  unbolted  because  by  our 
laws  we  can  hang  a  thief." 

The  concluding  comparison  indicates  the  leaning 
of  its  author  in  favour  of  the  previous  restriction. 
The  utility  and  justice  of  the  comparison  itself, 
however,  appear  questionable.  No  man  in  his  senses* 
it  is  true,  would  invite  danger  by  leaving  his  door 
open,  since  he  might  lose  and  could  not  gain  by  the 


*  Johnson's  Life  of  Milton,  104, 
4 


XXVI  1NTK0DUCTI0K. 

experiment;  and  security  on  the  one  hand  is  opposed 
to  danger  on  the  other. 

And  so  in  case  danger,  political  or  religious, 
were  to  be  apprehended  from  an  open  press,  and 
no  inconvenience  were  likely  to  arise  from  restrain- 
ing it,  no  one  could  doubt  the  propriety  of  such 
restraint ;  and  to  leave  the  press  unrestricted  be- 
cause an  abuse  of  the  liberty  might  afterwards  be 
punished,  would  be  as  silly  as  to  leave  the  door  un- 
barred, because  the  thief  might  be  hanged.  If  the 
comparison  be  meant  to  extend  no  further  than  this, 
it  is  useless,  since  it  merely  illustrates  a  fictitious 
case  which  does  not  admit  of  doubt ;  if  it  be  meant 
to  extend  further,  its  application  is  unjust,  since  the 
danger  to  be  apprehended  from  an  open  press  is 
opposed,  not  to  security,  but  to  the  danger  to  be 
dreaded  from  making  power  the  standard  of  truth. 
The  advocate  for  an  open  press  assigns  for  his  rea- 
son, not  that  an  offender  maybe  afterward  punished, 
but  that  he  apprehends  greater  mischief  from  the 
restriction,  than  from  the  abuse  of  the  liberty :  each 
side  of  the  alternative  presents  its  inconveniences, 
and  the  only  question  is,  which  is  the  more  tolera- 
ble, to  see  no  truth  but  through  the  suspicious  me- 
dium of  power,  or  to  risk  the  disorders  and  skepti- 
cism which  may  flow  from  a  press  unfettered  by  pre- 
vious restriction. 

That  a  free  press  is  the  surest  protection  against 
the  inroads  of  arbitrary  power,  is  a  position  which 
may  almost  be  regarded  as  a  political  axiom.  Under 
a  government  where  communication  is  shut  out,  the 
individual  suffers  in  silence ;  innovations  are  securely 
practised  upon  what  remains  of  his  liberty ;   his 


INTRODUCTION.  XXVll 

knowledge  is  confined  to  his  own  grievances  ;  and 
to  proclaim  them  aloud,  and  singly  and  unassisted  to 
demand  redress,  is  too  dangerous  a  measure  for  the 
stoutest  resolution. 

By  means  of  the  press  every  movement  of  power 
is  announced  to  the  community ;  the  effects  of  every 
measure  scrutinized  by  the  united  talents  of  the 
whole  ;  every  individual  learns  the  extent  of  every 
public  grievance,  and  is  animated  in  his  resistance 
to  the  oppression  by  the  confidence  which  the  sup- 
port of  numbers  never  fails  to  inspire. 

The  security  thus  afforded  is  valuable  in  propor- 
tion to  the  value  placed  upon  liberty  itself,  and  is 
an  advantage  singly  sufficient  to  outweigh  the  oppo- 
site evils,  were  they  more  real  than  experience  has 
proved  them  to  be.* 

An  important  distinction  relating  to  this  topic 
still  remains.  There  is  a  wide  difference  between 
an  open  press,  that  is,  a  press  not  subject  to  the 
previous  control  of  a  licenser  and  a  free  press  ;  and 
yet  it  is  remarkable,  that  these  are  treatedf  by  a 
very  eminent  writer  upon  our  constitution,  as 
identical.  Does  the  removal  of  previous  restraint, 
necessarily  and  essentially  constitute  a  free  press  ? 
May  not  the  pains  and  penalties  inflicted  for  that 
which  has  been  published  be  so  unwarrantably  se- 
vere as  to  prevent  future  publications  ? — To  take 
an  extreme  case: — Suppose  a  government  claiming 
no  previous  right  of  restraint,  to  punish  with  loss  of 
life  or  limb  for  publications  abstractedly  innocent, 

*  It  is  now  upwards  of  a  century  since  the  press  of  this  country  was  /inalh- 
rescued  from  the  hands  of  a  licenser. 
+  Sir  W.  Blackstone's  Com-  vol.  it.  151, 


XXVHL  INTRODUCTION. 

could  the  press  in  that  country  be  deemed  free  ?  It 
not,  then  it  is  clear,  that  something  more  than  the 
mere  absence  of  previous  restraint  is  essential  to 
the  liberty  of  the  press. 

This  further  requisite  consists  in  laying  down  plain 
intelligible  rules,  adapted  to  the  exigencies  and  con- 
venience of  society ;  without  such  guides,  the  most 
perplexing  uncertainty  must  prevail,  and  it  may 
fairly  be  questioned,  whether  the  alternative  of  a 
licenser,  whose  office,  however  odious,  at  all  events 
secures  from  punishment,  by  preventing  the  publi- 
cation of  that  which  he  deems  offensive,  be  not  pre- 
ferable to  the  permission  to  publish,  where  the  effect 
of  publishing  is  hazardous  and  uncertain. 

Civil  liberty  has  been  well  defined,*  to  consist  in 
"  The  not  being  restrained  by  any  law  but  what 
conduces,  in  a  greater  degree,  to  the  public  good." 
Were  a  set  of  laws,  therefore,  to  be  constructed 
upon  this  foundation,  for  regulating  the  extent  of 
the  privilege  of  communication,  so  as  to  consist  with 
the  fullest  enjoyment  of  civil  liberty,  their  operation 
would  produce  the  greatest  aggregate  of  good  ;  so 
that  were  a  greater  latitude  allowed,  the  mischief 
would  outweigh  the  advantage  resulting  from  freer 
communication  :  were  the  privilege  more  contracted, 
the  additional  security  would  not  compensate  for  the 
increase  of  litigation,  and  the  partial  loss  of  the  be- 
nefits afforded  by  free  discussion  ;  or  in  either  case, 
an  inconvenience  would  accrue  from  relinquishing  a 
plain  well  defined  rule  for  one  uncertain  and  preca- 
rious. To  determine,  therefore,  with  precision,  the 
limits  of  verbal  and  written  communication,  is  a 

•  Paley's  Philosophy,  vol.  2.  p.  164 


DIVISION  OF  THE  SUBJECT.  XXIX 

problem  easy  of  enunciation,  but  exceedingly  com- 
plicated in  its  solution  :  it  involves  the  consideration 
of  the  habits,  manners,  and  even  fancies  and  preju- 
dices of  the  people  for  whose  government  it  is  in- 
tended, and  may  require  alterations  corresponding 
with  the  changes  effected  in  the  state  of  society. 
Before  mercantile  convenience,  for  instance,  had 
created  what  is  termed  credit,  an  imputation  of  in- 
solvency could  produce  little  prejudice,  yet  after  the 
establishment  of  commerce,  it  might  largely  contri- 
bute to  its  own  verification  ;  and  it  would  not  be 
difficult  to  cite  terms  of  reproach,  which  in  one  age 
would  exasperate  and  provoke  to  acts  of  violence, 
but  in  another,  would  meet  with  disregard  and  in- 
difference. 

To  INQUIRE  WHAT  LIMITS  HAVE  BEEN  PRESCRIBED 
BY  THE  LAW  OF  ENGLAND  TO  THE  COMMUNICATION 
OF  IDEAS  OF  ANY  DESCRIPTION,  WHETHER  OF  FACTS 
OR  OF  OPINIONS,  WHICH  MAY  AFFECT  THE  CHARAC- 
TERS OF  INDIVIDUALS,  OR  THE  INTERESTS  OF  THE 
PUBLIC,  AND  THE  MODE  BY  WHICH  ITS  REGULATIONS 
ARE  TO  BE  ENFORCED,  IS  THE  OBJECT  OF  THE  PRE- 
SENT TREATISE. 

In  pursuing  this  investigation,  the  following  me- 
thod is  proposed  to  be  observed. 

1st.  To  reduce  the  subject  into  the  most  simple 
divisions  of  which  it  is  capable,  with  reference  to 
general  principles  and  distinctions  recognised  by  the 
Law  of  England. 

And  2dly.  To  endeavour,  from  the  particular 
cases  which  range  themselves  within  each  of  such 
divisions,  to  extract  such  principles  and  positions  as 
may  serve  to  define  and  ascertain  the  limits  and 
boundaries  of  this  branch  of  the  law. 


.XXX  DIVISION  OF  THE  SUBJECT. 

In  the  first  place  it  is  necessary,  for  the  sake  of 
clearness,  to  advert  to  the  well-known  distinction 
between  private  and  public  wrongs  :  in  the  former 
case,  the  object  of  the  law  is  to  compel  a  reparation 
to  the  injured  individual,  for  a  specific  loss ;  of  the 
latter,  to  prevent,  by  dread  of  punishment,  an  at- 
tempt to  produce  disorder  in  society.  The  founda- 
tion, therefore,  of  proceeding  in  the  two  cases,  is 
perfectly  distinct ;  and  the  means  used  by  the  law 
for  the  attainment  of  such  different  objects,  are,  as 
might  be  expected,  dissimilar. 

In  some  respects,  it  is  true,  the  corresponding 
incidents  are  nearly  related ;  but  upon  the  whole,  a 
separate  consideration,  even  of  these,  appears  pre- 
ferable, particularly  since  repetition  may  be  avoided 
by  reference,  and  the  advantage  derived  from  view- 
ing the  two  branches  in  their  mutual  bearings,  may 
be  attained  by  subsequent  comparison. 

The  subject  will  therefore  be  considered, 

1st.  In  its  relation  to  individuals. 

2dly.  In  its  relation  to  the  interests  of  the  public. 

In  considering  the  subject  as  it  relates  to  indi- 
viduals, it  will  be  convenient  to  inquire, 

1st.  Under  what  circumstances  an  individual  is 
entitled  to  recover  damages  for  any  communication 
concerning  him. 

2dly.  The  means  appointed  by  law  for  obtaining 
such  damages  where  the  party  is  entitled  ;  and  the 
means  of  defence  where  a  party  sues  who  is  not  so 
entitled. 

1st.  Under  what  circumstances  is  an  individual 
entitled  to  recover  damages  for  a  communication 
concerning  him  ? 


DIVISION  OF  THE  SUBJECT.  XXXI 

An  action  to  recover  damages  in  case  of  slander, 
rests  upon  the  grounds  and  principles  of  Common 
Law ;  and  though  the  legality  of  such  a  proceeding 
has  been  recognised  by  statutes  regulating  the  costs 
and  limiting  the  time  of  complaint,  the  right  to  re- 
dress exists  independently  of  the  written  law.  To 
this  observation  the  proceeding  by  action  of  scanda- 
lum  magnatum  seems  to  form  no  exception,  since 
the  statutes  relating  to  that  offence,  rather  secure 
an  existing  right  by  new  penalties  than  create  a  title 
to  damages.  (1  West.  3  E.  1.  c.  34.  2  R.  2.  c.  5. 
1 2  R. 2.  c.  1 1 .  Lord  Townsend v. Dr. Hughes,2Mod. 
150.) 

The  Law  of  England,  in  its  ample  and  equitable 
provision  of  remedies,  prescribes,  generally,  that 

"  WHERE  A  MAN  HAS  A  TEMPORAL  LOSS  OR  DAMAGE 
BY  THE  WRONG  OF  ANOTHER,  HE  SHALL  HAVE  AN 
ACTION  ON  THE  CASE  TO  BE  REPAIRED  IN  DAMAGES." 

(1  Com.  Dig.  168.  Bac.  Ab.  tit.  Actions.  B.) 

In  order,  therefore,  to  constitute  a  right  of  action, 
at  Common  Law,  two  circumstances  must  concur  ; 
first,  a  loss  must  have  been  sustained  by  the  plaintiff; 
and  secondly,  the  loss  must  have  been  occasioned 
by  the  wrongful  act  of  the  defendant. 

The  first  question,  therefore, — When  is  an  indivi- 
dual entitled  to  recover  damages  for  any  communi- 
cation concerning  him  ?  resolves  itself  in  two  consi- 
derations: 1st.  When  shall  a  man  be  said  to  have 
suffered  a  temporal  loss  from  a  communication 
concerning  him  ?  2dly.  When  shall  the  act  of  com- 
munication be  deemed  a  wrong  ? 


OF  THE  PLAINTIFFS  LOSS 


CHAPTER  I. 


When  shall  a  man  be  said  to  have  suffered  a 
temporal  loss  from  a  communication  concerning 
him? 

Since  the  remedy  sought  to  be  recovered  by  a 
personal*  action  in  a  court  of  law  is  of  a  pecuniary 
nature,  it  follows,  that  the  loss  complained  of,  ought 
to  admit  of  a  pecuniary  admeasurement.  The  term 
temporal,  used  as  descriptive  of  the  loss  upon  which 
a  suit  may  be  supported,  seems  particularly  opposed 
to  spiritual  grievances^  which  cannot  be  estimated 
in  money,  and  for  which  a  remedy  must  be  found, 
if  at  all,  under  a  jurisdiction  very  differently  con- 
stituted; and  so,  a  mere  injury  to  the  feelings  with- 
out actual  deterioration  of  person  or  property,  can- 
not  form  an  independent  and  substantive  ground  of 
proceeding,  though  in  other  cases  it  may  materially 
influence  a  jury  in  their  assessment  of  damages. 

In  general,  then,  it  is  necessary  to  prove  a  spe- 
cific loss  to  have  been  sustained,  by  the  evidence 
of  which  a  jury  is  to  be  guided  in  assessing  pecu- 
niary damages ;  with  respect  to  this  rule,  however, 

*  i,  e.  In  an  action  upon  the  case.  f  4  Co.  16. 

9. 


10 

the  case  of  slander  exhibits  a  remarkable  exception 
many  communications  being  deemed  actionable 
without  proof  of  special  loss. 

This  dispensation  is  grounded  upon  the  strong 
presumption  of  loss  supplied  by  the  injurious  qua- 
lity of  the  communication,  and  the  necessity  for  ad- 
ministering a  speedy  remedy. 

The  nature  and  force  of  these  reasons  will  be 
best  illustrated  by  examples.  Suppose  insolvency 
to  be  imputed  to  a  merchant  or  banker  :  if  he  were 
compelled  to  wait  until  he  could  come  prepared 
with  proof  of  a  specific  loss  sustained  in  conse- 
quence of  the  slander,  the  legal  remedy  would  fre- 
quently arrive  too  late. 

The  natural  and  probable  effect  of  such  a  report, 
is-  immediate,  and  increasing  prejudice,  the  slander 
itself  affording  a  violent  presumption  that  damage 
either  has  or  will  accrue  to  the  object  of  it;  the 
hardship  would  therefore  be  great,  were  he  to  be 
excluded  from  the  courts  by  the  difficulty,  peculiar 
to  his  case,  of  providing  the  precise  measure  of  legal 
evidence,  until  the  evil  had  become  inveterate,  and 
his  affairs  irretrievable. 

So  in  the  remarkable  case  where  an  imputation 
is  thrown  upon  the  plaintiff  likely  to  induce  his  an- 
cestor to  disinherit  him ;  no  loss  can  in  such  case 
actually  arise,  until  by  the  death  of  the  ancestor  the 
disinherison  shall  have  become  complete  ;  but,  were 
the  plaintiff*  compelled  to  wait  till  then,  it  would  fre- 
quently be  impossible  to  apply  a  remedy  ;  the  inter- 
mediate death  of  the  wrong-doer,  or  his  inability  to 
make  compensation,  might  leave  the  injured  party 
without  legal  resource.  By  dispensing  with  the 
usual  strictness  of  proof,  and,  considering  imputations 


11 

which  afford  strong  presumptive  evidence  of  damage, 
as  sufficient  grounds  of  action,  the  evils  of  the  nature 
alluded  to  are  avoided,  and  by  an  early  refutation 
of  the  calumny  the  ultimate  effects  of  it  averted ; 
and  though  the  defendant  in  such  an  action  cannot 
be  looked  upon  as  an  object  of  indulgence,  yet  the 
interests  of  all  parties  seem  better  consulted  by  al- 
lowing cognizance  of  the  matter  at  an  early  stage, 
when  a  slight  reparation  may  arrest  the  progress  of 
the  mischief,  and  restore  the  injured  party  to  his 
right,  than  by  waiting  till  the  damage  shall  have  be- 
come more  serious,  and  the  remedy  more  difficult 
and  uncertain. 

The  jurisdiction  or  courts  of  law,  in  actions  for 
slander,  has  for  its  immediate  object  the  enforcing  a 
compensation  in  damages  for  a  loss  sustained ;  but 
this  necessarily  includes  a  collateral  means  of  relief, 
in  many  instances  more  efficacious  than  the  principal 
remedy  claimed,  since  an  opportunity  is  afforded  to 
the  party  of  openly  rebutting  the  calumny,  by  chal- 
lenging investigation  in  the  face  of  the  country, — a 
matter  frequently  of  more  serious  importance  than 
the  recovery  of  damages,  and  an  advantage  which 
could  not  be  so  well  obtained  by  other  means ;  and 
though,  as  already  observed,  this  mode  of  relief  be 
but  incidental  to  the  main  end,  yet  its  evident  con- 
venience furnishes  a  strong  reason  for  relaxing- 
somewhat  of  usual  strictness  for  the  sake  of  extend 
ing  it. 

The  consideration  of  the  plaintiffs  loss,  there- 
fore, affords  two  subjects  for  inquiry : 

1st,  In  what  cases  and  upon  what  grounds  does 
the  law  presume  a  loss  to  the  plaintiff  from  the 
siander  ? 


m 

2dly,  Where  a  specific  loss  must  be  proved,  how 
must  such  specific  loss  be  connected  with  the 
slander  ? 

1st,  In  what  cases  and  upon  what  grounds  does 
the  law  presume  a  loss  to  the  plaintiff  from  the 
slander  ? 

The  general  distinction  of  law  as  to  the  necessity 
of  showing  special  damage  in  such  cases  is,  that 
"  where  the  natural  consequence  of  the  words  is  a 
damage  ;  as  if  they  import  a  charge  of  having  been 
guilty  of  a  crime,  or  of  having  a  contagious  distem- 
per, or  if  they  are  prejudicial  to  a  person  in  an  office, 
or  to  a  person  of  a  profession  or  trade,  they  are  in 
themselves  actionable  ;  in  other  cases,  the  party  who 
brings  an  action  for  words,  must  show  the  damage 
which  he  has  received  from  them."* 

From  the  books,  it  appears,  that  actions  have  been 
maintained  without  proof  of  special  damage  in  the 
following  cases. 

Where  a  person  is  charged  with  the  commission 
of  a  crime. 

Where  an  infectious  disorder  is  imputed. 

Where  the  imputation  affects  him  in  his  office, 
profession,  or  business. 

Where  the  matter  charged  tends  to  the  party's 
disinherison,  or  affects  his  title  to  land. 

Where  the  slander  is  propagated  by  printing, 
writing,  or  signs. 

In  cases  of  scandalum  magnatum. 

It  will  be  considered,  under  each  of  these  divi- 
sions, by  what  rules  the  extent  of  the  action  in  each 

*  6  Bac.  Ab.  205. 


13j 

case  is  limited,  and  the  reasons  upon  which  they 
are  founded. 

1st,  Where  a  person  is  charged  with  the  commis- 
sion of  a  crime. 

Here  it  may  be  considered, 

1st,  What  must  be  the  nature  of  the  offence  im- 
puted. 

2dly,  In  what  manner  and  terms  it  must  be  im- 
puted. 

1st,  What  must  be  the  nature  of  the  offence  im- 
imputed. 

The  action  for  scandalous  words,  though  of  high 
antiquity,  was  formerly  so  little  resorted  to,  that 
between  the  first  and  fifth  years  of  the  reign  of  Ed- 
ward the  third,  not  more  than  three  instances  oc- 
curred.* 

From  the  commencement  however  of  the  reign 
of  Elizabeth,  such  actions,  especially  for  words  con- 
taining an  imputation  of  crime,  began  to  multiply 
writh  great  rapidity,  a  circumstance  chiefly  attri- 
butable to  the  increasing  encouragement  which  they 
met  with  in  our  courts.  No  settled  rule  ascertain- 
ing their  limits,  seems  however  to  have  been  esta- 
blished at  any  early  period,  and  the  host  of  conflict- 
ing decisions  to  be  met  with  in  the  books,  exhibit 
convincing  marks  of  the  precarious  and  fluctuating 
principles  on  which  they  were  grounded. 

A  struggle  between  two  opposite  inconveniences, 
seems  to  have  created  this  wavering  in  the  minds  of 
the  judges.  The  fear  of  encouraging  a  spirit  of  idle 
and  vexatiousf  litigation,  by  affording  too  great  a 
facility  to  this  species  of  action,  was  contrasted  with 

*  According  to  Coke  C,  J.  3  Btilst.  167.  t  6  Mod.  24, 


14 

the  mischief  resulting  to  the  public  peace  from  re- 
fusing legal  redress  to  the  party  whose  reputation 
had  been  slandered,  every  day's  experience  teach- 
ing, that  the  remedy,  denied  by  our  courts,  would 
most  surely  be  sought  after  by  acts  of  personal 
violence.  Accordingly  it  appears,  that  as  the  former 
or  latter  of  these  considerations  preponderated,  a 
more  rigid  or  relaxed  rule  of  decision  was  adopted 
by  the  judges.*(l) 

In  Edward's  case,f  the  defendant  had  charged 
the  plaintiff  with  having  attempted  to  burn  the 
defendant's  house ;  and  the  court  were  of  opinion, 
that  the  charge  was  actionable,  assigning,  generally, 
as  the  reason,  that  "by  such  speech  the  plaintiff's 
good  name  is  impaired." 

In  Stanhope  v.  Blithe  the  words  were — "M. 
Stanhope  hath  but  one  manor,  and  that  he  hath 
gotten  by  swearing  and  forswearing ;"  and  Wray, 
C.  J.  said,  "that  though  slanders  and  false  imputa- 
tions are  to  be  suppressed,  because  many  times 
a  verbis  ad  verbera  perventwn  est ;"  yet  he  said, 
"that  the  judges  had  resolved,  that  actions  for  scan- 
dals  should  not  be  maintained  by   any   strained 

*  Out  of  200  successive  cases,  taken  at  random  in  Coke's  Reports  of  cases 
in  the  reign  of  Elizabeth,  15  consist  of  actions  for  words, — a  proportion  some- 
what greater  than  that  of  one  in  fourteen.  If,  upon  the  average,  it  be  supposed 
that  each  individual  case  of  the  two  classes  occupied  the  same  time,  it  will 
follow,  that  one  day  out  of  every  fourteen,  must  have  been  devoted  by  the 
eourt  to  this  unprofitable  species  of  discussion. 

tCro.  Eliz.  6.  |  4  Co.  15. 

(1)  "  Generally  speaking,  indeed,  actions  of  slander,  founded  on  trifling 
causes,  to  gratify  a  petulant  and  quarrelsome  disposition,  will  not  be  encouraged 
by  the  Court :  but  when  the  reputation,  trade,  or  profession  of  a  Citizen  is 
really  affected,  for  the  sake  of  doing  justice  to  the  dearest  interests  of  indi- 
viduals, as  well  as  for  the  sake  of  preserving  public  order  and  tranquillity,  every 
appeal  to  the  tribunals  of  our  Country  ought  to  be  encouraged."  Per  Shipper 
Prat,    2  Dall.  Rep.  60. 


id 

construction  or  argument,  nor  any  favour  given  to 
support  them ;  forasmuch  as  in  these  days  they  more 
abound  than  in  times  past,  and  the  intemperance 
and  malice  of  men  increase,  et  malatiis  hominum  est 
obviandum :  and  in  our  books  actiones  pro  scanda- 
lis  stmt  rarissimce;  and  such  as  are  brought  are  for 
words  of  eminent  slanders  and  of  great  import." 
In  Smale  v.  Hammon,*  the  words  were,  "thou 
wert  forsworn,  and  I  can  prove  it."  Upon  motion 
in  arrest  of  judgment,  Williams,  J.  said,  "this  rule 
is  to  be  observed  as  touching  words,  which  are 
actionable ;  that  is  to  say,  where  the  words  spoken 
do  tend  to  the  infamy,  discredit,  or  disgrace  of  the 
party,  there  the  ivords  shall  be  actionable"  Jlnd  the 
ride  was  affirmed  by  the  court. 

Yet  so  little  was  this  rule  regarded,  that  in  the 
very  next  case  which  occurred,  where  the  words 
were,f  "  thou  wert  in  jail  for  robbing  such  an  one 
on  the  highway,"  the  court  differed  in  opinion  ; 
and  Fenner,  J.  held,  that  if  one  saith  of  another, 
"thou  art  as  very  a  thief  as  any  in  Warwick  jail," 
none  being  then  in  prison,  the  words  would  not  be 
actionable,  but  otherwise  had  a  felon  been  there  at 
the  time. 

In  Sir  Harbert  Crofts  v.  Brown, \  the  words  were, 
"Sir  H.  C.  keepeth  men  to  rob  me."  And  upon 
giving  judgment  for  the  defendant,  Coke,  C.  J. 
said,  "We  will  not  give  more  favour  unto  actions 
on  the  case  for  words,  than  of  necessity  we  ought  to 
do,  where  the  words  are  not  apparently  scandalous, 
these  actions  being  now  too  frequent." 

In  the  early  part  of  the   reign  of  queen   Anne. 

"f  i  Bulst.  40.  t  Bulst.  -10,  •  3  Bulst.  167. 


\ 


16 

Chief  Justice  Holt*  observed,  that  "it  waa  not 
worth  while  to  be  learned  on  the  subject,  but  when- 
ever any  words  tended  to  take  away  a  man's  reputa- 
tion, he  would  encourage  actions  for  them,  because 
so  doing  would  much  contribute  to  the  preservation 
of  the  peace."  And  in  another  reportf  of  the  same 
case,  he  is  stated  to  have  said,  "  I  remember  a  story, 
told  by  Mr.  Justice  Tvvisdon,  of  a  man  that  had 
brought  an  action  for  scandalous  words  spoken  of 
him ;  and  upon  a  motion  made  in  arrest  of  judgment 
the  judgment  was  arrested,  and  the  plaintiff  being  in 
the  court  at  the  time,  said,  that  if  he  had  thought  he 
should  not  have  recovered,  he  would  have  cut  the 
defendant's  throat." 

Yet  the  same  learned  judge,  in  a  case:}:  somewhat 
subsequent  to  the  former,  is  reported  to  have  said, 
that  "  to  make  words  actionable  in  themselves,  it 
is  necessary  to  charge  some  scandalous  crime  by 
them."  In  the  case  of  Ogden  and  Turner,§  the  de- 
fendant said  to  the  plaintiff,  "thou  art  one  of  those 
that  stole  my  Lord  Shaftesbury's  deer."  The  court 
held,  u  that  words,  to  be  of  themselves  actionable, 
without  regard  to  the  person  or  foreign  help,  must 
either  endanger  the  party's  life,  or  subject  him  to  in- 
famous punishment,  and  that  it  is  not  sufficient  that 
the  party  may  be  fined  and  imprisoned :  for  that, 
if  any  one  be  found  guilty  of  any  common  trespass, 
he  shall  be  fined  and  imprisoned,  and  yet,  that  no 
one  will  assert,  that,  to  say  one  has  committed  a 
trespass  will  bear   an  action,  or  that  at  least  the 


*  Baker  v.  Pierce,  Holt,  k.  654.  6  Mod.  24.  S.  C.     t  Lord  Ray.  959. 
"  Walmeslcy  v.  Russel,  6  Mod.  200. 
6  Mod.  104.     2Salk.  696.     Holt.  40- 


;7 

thing  charged  upon  the  plaintiff  must  be  scanda- 
lous" And  in  the  same  case  it  was  held,  that  where 
the  penalty  for  an  offence  by  a  statute  was  of  a 
pecuniary  nature,  an  imputation  of  such  an  offence 
would  not  be  actionable,  even  though  in  default  of 
payment  the  statute  should  direct  the  offender  to  be 
set  in  the  pillory,  since  the  setting  in  the  pillory 
was  only  for  want  of  money,  and  not  the  direct 
penalty  given  by  the  statute. 

In  Button  v.  Heyward,*  Fortescue  Justice  ob 
served,  "  It  was  the  rule  of  Holt,  C.J.  to  make 
words  actionable  whenever  they  sound  to  the  disrepu- 
tation of  the  person  of  whom  they  were  spoken  ;  and 
this  was  also  Hale's  and  Twisden's  rule,  and  I  think 
it  a  very  good  rule." 

Such  is  the  nature  of  the  general  rules  upon  which 
the  older  decisions  were  founded. 

The  ground  of  an  action  for  words  in  the  absence' 
of  specific  damage,  is,  as  has  already  been  seen,  the 
immediate  tendency  in  the  words  themselves  to  pro- 
duce damage  to  the  person  of  whom  they  are  spoken, 
in  which  case,  presumption  supplies  the  place  of 
actual  proof.  The  immediate  and  obvious  incon- 
veniences resulting  from  a  charge  of  crime  are,  the 
party's  degradation  in  society,  and  his  exposure  to 
criminal  liability.  In  the  former  case  the  presump- 
tion is,  that  he  has  lost  the  benefit  of  intercourse  witli 
society ;  in  the  latter,  that  he  is  placed  in  jeopardy, 
and  that  the  suspicion  excited  by  the  report,  may 
produce  a  temporary  deprivation  of  his  liberty  until 
his  innocence  can  be  made  manifest.  Further  than 
the  evil  of  a  temporary  privation,  the  presumption 

u  8  Mod.  2  ' 
S 


lb 

cannot  in  general  be  carried,  since  a  mere  false 
report  cannot  of  itself  affect  the  party's  life ;  and  if 
the  report  be  true,  he  is  not,  as  will  afterward  be 
seen,  entitled  to  an  action.  Cases  may  however 
occur,  where  the  detriment  may  be  much  more 
serious  than  a  temporary  loss  of  liberty.  It  is  very 
possible  to  suppose,  for  instance,  that  an  unfortunate 
combination  of  circumstances  may  leave  the  question 
of  guilt  or  innocence,  in  a  capital  case,  so  nicely 
poised  in  the  mind  of  the  jury,  that  a  prejudice  in- 
stilled by  a  previous  report,  may  turn  the  scale 
against  the  accused,  though  really  innocent;  and 
this  apprehension  was  still  more  formidable,  when 
the  law  required  a  man's  jury  to  be  summoned  from 
the  Neighbourhood,  a  place  likely  to  be  the  most 
strongly  infected  with  the  prejudice.  The  liberty 
of  every  individual,  however,  is  considered  by  the 
law  as  so  valuable,  that  the  very  probability  of  its 
suspension  is  held  sufficient  to  enable  him  to  assert 
his  innocence  in  court,  to  avert  the  evil  apprehend- 
ed, and  to  recover  damages  for  the  injury  at  the  very 
earliest  opportunity. 

Since  then  the  grounds  of  action  are  to  be  found 
in  one  or  both  these  consequences,  namely,  the  de- 
gradation of  the  party  in  society,  or  his  liability  to 
criminal  animadversion,  it  becomes  material  to  as- 
certain, by  reference  to  the  decided  cases,  under 
what  restrictions  one  or  both  of  these  can  constitute 
the  subject  matter  of  such  an  action.  First,  it  is 
to  be  observed,  that  though  these  two  consequences 
cannot  be  completely  separated,  inasmuch  as  a 
greater  or  less  degree  of  discredit  must  necessarily 
attach  to  every  violation  of  the  existing  law,  yet 
that  the.  party's  jeopardy  in  a  legal  point  of  view  is 


19 

considered  by  the  law  as  the  principal  ground  of  ac- 
tional) This  appears  from  the  general  scope  and 
tendency  of  the  body  of  cases,  to  be  found  in  the 
books,  relating  to  this  copious  subject,  in  which, 
though  the  discredit  to  the  party  is  frequently  a  topic 
of  discussion,  yet  the  main  question,  for  the  most 
part,  turns  upon  the  penal  consequences  of  the 
offence,  and  the  certainty  wherewith  it  is  charged. 

There  are,  however,  many  instances  to  be  found 
which  prove  that  criminal  liability  is  not  always  the 
peculiar  and  exclusive  ground  of  action,  and  in 
which  a  remedy  has  been  given  on  account  of  impu- 
tations, which,  if  believed  and  even  proved,  could 
not  have  subjected  the  plaintiff  to  any  future  penal- 
ty : — For  instance, 

The  defendant  said,  "  Robert  Carpenter*  was 
in  Winchester  jail,  and  tried  for  his  life,  and  would 
have  been  hanged  had  it  not  been  for  Leggat,  for 
breaking  open  the  granary  of  farmer  A.  and  steal- 
ing his  bacon." 

In  Gainford  v.  Tukef  the  words  were — "  Thou 
wast  in  Launceston  jail  for  coining !"     The  plain 
tiff  replied,  "  If  I  was  there,  I  answered  it  well." 
"  Yea,"  said  the  defendant,  "you  were  burnt  in  the 
hand  for  it !" 

*  Carpenter  v.  Tarrant,  Rep.  Temp.  Hard.  839. 
t  Cro.  Jac.  536. 


(1)  The  rule  seems  to  be,  that  where  the  charge,  if  true,  will  subject  the  party 
charged  to  an  indictment  for  a  crime,  involving  moral  turpitude,  or  subject  him 
to  an  infamous  punishment,  then  the  words  are,  in  themselves,  actionable. 
Brooker  v.  Coffin,  5  Johns.  Itep.  183.  Shaeffer  v.  Kintzer,  1  Binn.  542.  Ross 
v.  M'Clurg,  5  Bun.  2i8.  Andreas  etax.  v.  Koppenheaffer,  3  Serg.  and  RawlCj 
255.  Chapman  v.  Gillel,  2  Conn.  Rep.  CI,  per  Could,  J.  Widrig  v.  Oyer,  tl  ux. 
13  Johns.  Rep.  124.  Elliott  v.  JMsbury,  2  Bibb'3  Rep.  473.  To  charge  a  man 
with  a  crime  committed  in  another  state,  will  sustain  an  action,  as  the  party 
charged  might  be  demanded  by  the  executive,  as  a  fugitive  from  justice.  Fan 
.Inhinv.  IVrstfall,  14  Johns,  Uep.  233. 


>1> 

In  Boston  v.  Tatham.*  The  action  was  brought 
for  saying  that  the  plaintiff  was  a  thief,  and  had 
stolen  the  defendant's  gold.  It  was  contended  in 
arrest  of  judgment,  that  the  words  not  being  cer- 
tain as  to  time,  they  might  be  taken  to  refer  to  the 
time  of  Queen  Elizabeth,  since  which  there  had 
been  divers  general  pardons,  in  which  case  no  loss 
could  happen  from  the  scandal.  But  the  court  said, 
that  it  is  a  great  slander,  to  be  once  a  thief;  and 
that  although  a  pardon  may  discharge  of  punishment, 
yet  the  scandal  of  the  offence  remains. 

In  the  above  cases  of  Carpenter  v.  Tarrant,  and 
Gainford  v.  Tuke  (the  former  of  which  was  cited 
by  Lord  Ellenborough  C.  J.  in  giving  judgment  in 
a  late  case,)f  the  words  import,  that  the  plaintiff  had 
been  acquitted  in  the  one  case,  and  punished  in  the 
other;  neither  imputation,  therefore,  though  be- 
lieved, could  have  exposed  either  of  the  plaintiffs  to 
future  liability.  In  these  and  similar  instances  it  is 
likewise  to  be  observed,  that  though  motions  were 
made  in  arrest  of  judgment,  the  objection  relied 
upon  was,  that,  the  words  contained  no  direct  charge 
of  felony ;  and  it  was  not  insisted  upon  as  essential 
to  the  action,  that  the  words  must  impute  an  offence 
which  may  expose  the  party  to  a  future  prosecution, 
though  there  was  room  in  each  of  these  cases  for 
making  the  objection,  had  it  been  thought  available. 
And  in  the  case  of  Boston  v.  Tatham,  the  court  ex- 
pressed an  opinion,  that  even  allowing  that  the  words 
fixed  the  offence  to  a  period,  since  which  the  lia- 
bility to  punishment  must  have  been  discharged  by 
a  general  pardon,  yet  that  the  words  were  action- 

*  Cro.  J.  622.  Vid.  Sty.  49.  All.  35.  1  Vin.  Ab.  415.  pi.  8. 
t  Roberts  v."  Camb4en,  9  Kast.  Rep. 


21 

able  since  the  scandal  of  the  offence  remained.  And 
although  in  these  cases  the  principal  ground  upon 
which  words  of  this  description  are  held  actionable 
seems  abandoned,  yet  the  good  sense  of  the  deci- 
sions is  obvious;  for  were  it  otherwise,  the  slan- 
derer might  always  secure  impunity  by  cautiously 
asserting  that  the  party  slandered  had  already  suf- 
fered the  punishment  appertaining  to  the  imputed 
offence. 

Supposing  it,  however,  to  be  perfectly  true,  that 
in  some  instances  the  presumption  of  prejudice  to 
the  plaintiff  in  society  is  aground  of  action,  indepen- 
dent of  any  detriment  in  a  criminal  point  of  view, 
yet  it  appears  clearly  established,  that "  J\b  marge  ±~ 
upon  the  plaintiff   however  foul,  will  eniiiie  km  to  *~ 
damages,  unless  it  be  of  an  offence  punishable  in  a   m 
temporal  court  of  criminal  jurisdiction ." {i) 

Thus,  by  a  long  series  of  cases  it  has  been  de- 
cided, that  to  say  a  man  is  "  forsworn,"*  or  that  he 
has  taken  a  false  oath,  generally,  and  without  re- 
ference to  some  judicial  proceeding,  is  not  action- 
able ;  and  the  reason  is  that  in  the  latter  case  a  per- 
jury is  charged,  for  which  were  the  charge  true,  the 
party  would  be  liable  to  be  indicted  and  punished  ; 

*  Mo.  365.  Cro.  Eliz.  429.  Popham,  210.  Ow.  62.  Cro.  Eliz.  788.  Cro.  Eliz. 
009.  Cro.  E.  720-  Cro.  Eliz.  135.  1  Vin.  Ab.  404.  1  Itol.  Ab.  40.  Com  .  Dig. 
tit.  Action  on  the   case  for  defamation,  1>.  7.  6  Mod.  200. 


(1)  In  South  Carolina,  however,  it  has  been  decided,  that  to  call  a  man  anra- 
latto,  is  actionable  ;  because,  if  true,  the  party  would  be  deprived  of  all  civil 
rights,  and  would  be  liable  to  be  tried  under  ihe  negro  act,  without  the  privilege 
of  a  trial  by  jury.  Eden  v.  Legare,  1  Bay's  Rep.  171.  Wood  v.  King,  1  Nott 
and  M 'Cord's  Rep.  185.  Jllkinson  v.  Hartley,  1  M'Cord's  Rep.  103.  And  in 
Ntw-York  it  has  been  said,  an  action  will  lie  ior  charging  a  party  with  a  crime 
the  prosecution  of  which  has  been  barred  by  the  statute  of  limitations.  Van 
.hikin  v.  JVestfall,  14  John?.  Rep.  233- 


in  the  other,  a  breach  of  morality  is  imputed,  of 
which  the  law  does  not  take  cognizance. (1) 

So,  to  accuse  another  of  having  secreted*  a  will 
for  the  purpose  of  defrauding  his  relations,  is  not 
actionable ;  though  a  person,  who  by  such  means 
possesses  himself  of  the  testator's  property,  would 
be  regarded  by  society  in  no  better  light  than  the 
stealer  of  a  horse,  or  the  picker  of  a  pocket.  Again, 
where,  in  general,  bad  principles  and  vicious  pro- 
pensities are  imputed  to  the  plaintiff,  he  is  not  en- 
titled to  any  compensation  in  damages  without  proof 
of  a  specific  loss  ;  though  a  person  known  to  pos- 
sess such  principles  and  propensities  is  as  likely  to 
be  despised  and  avoided  in  society  as  if  he  had  ac- 
tually reduced  them  into  practice. 

The  defendant!  said  of  the  plaintiff,  "  He  is  a 
brabbler  and  a  quarreller,  for  he  gave  his  champion 
council  to  make  a  deed  of  gift  of  his  goods  to  kill 
me,  and  then  to  fly  out  of  the  country ;  but  God 
preserved  me." 

Sir  E.  Coke,t  in  his  comment  upon  this  case, 
says,  "  Upon  great  consideration  and  advisement,  it 
was  adjudged,  that  the  words  in  the  principal  case 
were  not  actionable  ;  for  (he  adds)  the  purpose  or 
intent  of  a  man,  without  act,  is  not  punishable  by 
laiv."  And  t  Ms  rule  seems  in  all  times  to  have  been 
adhered  to  with  more  consistency  than  is  generally 

*  3  Salk.  327. 

t  Eaton  v.  Allen,  4  Rep.  16.  Cro.  Eliz.  6S4. 

1 4  Co.  16.pl.  10. 


(1)  Ward  v.  Clark,  2  Johns.  Rep.  10.  Hopkins  v.  Beedle,  Caine's  Rep.  347. 
and  the  cases  cited  in  the  Reporter's  i0te.  Shaffer  v-  Kinlztr,  1  Binn.  537. 
Parker  v.  Spangler  et  ux.  2  Binn.  60.   IValsonv.  Hampton,  2  Bibb's  Rep.  312. 


23 

observable  in  decisions  relating  to  this  branch  of  the 
law,  though  many  cases  have  been  deemed  to  fall 
within  the  rule,  where  the  words  plainly  imported 
an  act  done. 

Thus,  in  the  very  case  of  Eaton  and  Allen  above 
cited,  there  was  more  than  a  mere  intention  to  pro- 
cure the  commission  of  a  murder  ;  there  was  a  soli- 
citation to  commit  one,  which  is  of  itself  an  indict- 
able offence. 

In  Lewknor  v.  Ouchley.*  The  words  were. 
"  He  and  another,  knowing  that  J.  S.,  a  goldsmith, 
did  curry  with  him  a  great  deal  of  plate,  did  lie  in 
wait  to  rob  him,  and  set  upon  him  b;  the  high-way  ; 
but  he  raising  the  country,  they  r'id  fly  away,  and 
Lewknor  lost  his  horse,  and  they  both  were  driven 
to  ride  away  upon  one  horse."  It  was  contended 
in  arrest  of  judgment,  that  by  the  plaintiff's  own 
showing  no  felony  was  charged  upon  him,  but  no- 
thing more  than  a  mere  intent ;  but  the  court  were 
of  opinion  that  the  action  well  say,  for  that  not  only 
an  intent,  but  a  fact  was  charged,  tor  which  fine  and 
imprisonment  were  due. 

The  cases  are  so  uniform  upon  this  point,  that  it 
would  be  superfluous  to  cite  further  instances  to 
show  that,  for  an  imputation  of  evil  inclinations  or 
principles,  no  action  lies ;  unless,  indeed,  as  will 
afterward  be  considered,  it  affect  the  plaintiff  in 
some  particular  character,  or  produce  special  da- 
mage. 

And  so  general  terms  of  abuse,  expressive  of  evil 
inclinations  and  corrupt  manners,  as  rogue,f  rascal, 
scoundrel,  and  +he  like,  are  not  actionable,  since 
! hey  do  not  impute  any  precise  and  definite  offence 

•  Cro.  Car.  1-10.  t  3  BY.  C.  324.  1  Vin.  Ab.  '11 7, 


24 

punishable  in  the  temporal  courts.(l)  So  it  has  been 
said,  that  the  word  swindler  is  too  general  to  support 
an  action,  but  Mr.  J.  Aston  formerly  held  other- 
wise.*^) 

In  the  case  of  Jones  v.  Herne,t  C.  J.  Willes  said, 
that  if  it  was  now  res  Integra,  he  should  hold,  that 
calling  a  man  a  rogue,  or  a  woman  a  whore,  in  pub- 
lic company,  was  actionable. 

It  seems  also  to  be  clearly  established,  that  words 
imputing  an  offence, %  merely  spiritual,  are  not  in 
themselves  actionable  :  and  the  reason  assigned  for 
this  is,§  that  the  party  slandered  may,  for  such 
words,  institute  a  suit  in  the  spiritual  court ;  and 
that  if  an  action  were  to  be  entertained  in  the  tempo- 
ral court,  the  party  would  be  twice  punished  for 
the  same  words.  Whatever  merit  this  reason  may 
possess,  the  rule  itself  seems  fully  established,  that, 
where  the  defamation  concerns  matter  merely  spi- 

*  1  T.  R.  753.        t  2  Wils.  87.         J  4  Co.  20.  §  Salk.  694.  12  Mod.  106. 


(1)  Per  Goddard,  J.  2  Conn.  Rep.  51;  and  Tilghman,  C  J.  5  Binn.  210, 
Caldwell  v.  Mhey,  Hardin's  Rep.  530. 

(2)  Stevenson  v.  Hayden,  2  Mass.  Rep.  406.  In  the  case  of  Neil  v.  Lewi", 
2  Bay's  Rep.  204,  the  declaration  contained  several  counts,  one  of  which  was 
for  calling  the  plaintiff  "  a  damned  swindler,"  and  there  was  a  general  verdict 
for  the  Plaintiff.  Upon  amotion  in  arrest  of  judgment,  the  court,  consisting 
of  four  judges,  held  that  "swindling  was  a  crimen  falsi,  an  offence  which,  if 
true,  would  render  a  man  infamous  ;"  and  refused  to  arrest  the  judgment.  It 
is  to  be  collected,  however,  from  the  opinion  of  the  Court,  that  the  words  were 
spoken  of  the  plaintiff  as  &  merchant  •  and  the  word  thief,  laid  in  the  third  count, 
would  support  an  action  without  any  reference  to  special  character.  The  law 
seems  to  be  settled  in  South  Carolina,  that  in  slander  a  general  verdict  may  be 
supported  if  any  one  of  the  counts  in  the  declaration  be  good.  Hogg  v.  Wilson, 
1  Nott  and  M'Cord's  Rep.  216.  Taylor  v„  Slurgineger,  2  Const.  Rep.  367.  So 
to  charge  a  man  with  "  embezzling  goods,"  is  not  actionable,  Caldwell  v.  Jihbey. 
But  if  swindler  mean  cheat,  as  has  been  held  in  England  (1  Hen.  Blackst.  531.) 
and  in  Massachusetts  (2  Mass.  Rep.  408.)  it  would  seem  actionable  in  Pen 

">p'a  to  charge  a  man  with  swindling, 


^5 

ritual,  and  determinable  in  the  ecclesiastical  court, 
as  imputing  adultery,  fornication,  or  heresy,  it  is  no 
ground  of  action  at  common  law. 

The  power  of  the  spiritual  court  is,  however,  con- 
fined to  the  infliction  of  penance  pro  salute  ctfiimte, 
and  does  not  extend*  to  the  awarding  damages  or 
amends  to  the  injured  party. 

In  the  particular  class  of  cases,  where  acts  or  ha- 
bits of  incontinence  have  been  imputed  to  females, 
doubt  has  been  entertained,  whether  an  action  was 
maintainable  :  these,  however,  will  be  hereafter  con- 
sidered under  a  more  appropriate  division  of  the  sub- 
ject, since  it  seems  both  from  actual  decision  and 
analogy,  that  such  imputations  cannot  in  general 
be  considered  actionable  as  charging  a  temporal 
crime.f 

In  Barnabas  v.  Traunter.|  The  plaintiff  declared, 
that  he  was  a  parishioner  of  S.  and  that  the  defen- 
dant, being  vicar  there,  with  the  intent  to  scandalize 
the  plaintiff,  and  to  draw  an  ill  opinion  of  him  among 
his  neighbours,  and  to  exclude  him  from  the  church, 
and  to  deprive  him  of  all  the  benefit  of  hearing  di- 
vine service  in  the  said  church ;  in  the  time  of  divine 
service,  in  the  hearing  of  the  parishioners,  mali- 
ciously pronounced  the  plaintiff  excommunicated, 
and  further  refused  to  celebrate  divine  service  till 
the  plaintiff  departed  out  of  the  church ;  upon  which 
the  plaintiff  was  compelled  to  go  out  of  the  church : 
whereas  the  plaintiff  was  not  excommunicated ;  by 
which  means  the  plaintiff  was  scandalized  and  hin- 
dered of  hearing  divine  service  for  a  long  time  ;  and 
for  the   clearing  of  this   scandal  and  showing  his 

*  4  Co.^0.  t  1  Vin.  Ab.  392.  Cro.  J.  323.  473.  Poph.  36. 

1  1  Vin.  Ab.  39f! 


20 

innocency  therein,  was  put  to  great  trouble  and  ex- 
pense. And  the  action  was  held  maintainable, 
though  the  plaintiff  did  not  show  that  any  man 
avoided  his  company,  or  forbore  to  trade  or  deal 
with  him,  or  that  he  had  any  temporal  or  special 
loss ;  for  it  was  said,  this  is  a  great  and  malicious 
scandal,  though  to  his  soul  and  though  spiritual.(l) 
Though  scandal  to  the  soul  was  the  reason  as- 
signed for  allowing  the  plaintiff  to  recover  in  this 
instance,  the  case  itself  can  scarcely  be  considered 
as  an  exception  to  the  general  rule ;  since,  though 
a  charge  of  excommunication  supposes  nothing 
more  than  a  spiritual  offence  or  contempt  upon 
which  it  is  grounded,  an  imputation  of  which  of- 
fence would  not  be  actionable,  and  although  the  de- 
privation of  the  spiritual  benefits  complained  of  can- 
not be  considered  as  a  temporal  loss  ;  yet,  excom- 
munication itself  is  attended  with  many  serious  tem- 
poral inconveniences:  the  object  of  it  is  excluded 
from  the  society  of  all  Christians  ;  is  disabled  to  do 
any  act  that  is  required  to  be  done  by  one  that  is 
probus  et  legalis  homo  ;  he  cannot  serve  upon  juries ; 
cannot  be  a  witness  in  any  court ;  and,  which  is 
still  more  serious,  he  cannot  bring  an  action,  real 
or  personal,  to  recover  lands  or  money  due  to  him.* 
He  is  further  liable  to  the  writf  de  excommunicato 
capiendo,  by  which  the  sheriff  is  directed  to  take 
Ihe  offender  and  imprison  him  in  the  county  jail, 

♦Litt.  201.         t  Fitz.  K.  B.  62. 

(1)  So  to  print  and  publish  of  A.  "that  he  has  been  deprived  of  the  chief 
ordinance  of  the  church  to  which  he  belongs,  and  that  too  by  reason  of  his  in- 
ns, groundless  assertions,"  is  a  libel.     But  the  court  took  the  distinction 
n  slander  by  words,  and  printing  or  writing.     Jtf'CorMe  v.  Boms,  5  Kinn- 


>T 


till  he  is  reconciled  to  the  church.  On  the  ground 
of  these  temporal  deprivations  under  which  a  per- 
son excommunicated  labours,  the  above  case  may 
perhaps  be  considered  as  authority,  consistently 
with  the  general  rule. 

The  rule  itself  is  liable  to  so  little  doubt  that  it 
would  be  losing  time  to  cite  cases  in  support  of  it, 
otherwise  than  by  way  of  general  reference,* — one 
instance  may  suffice. 

The  defendant!  said  that  the  plaintiff  "  had  two 
bastards,  and  should  have  kept  them;"  by  reason 
of  which,  words  and  discord  arose  between  the 
plaintiff  and  his  wife,  and  they  were  likely  to  have 
been  divorced.  After  verdict  it  was  moved,  in  arrest 
of  judgment,  that  these  words  were  not  actionable, 
because  he  doth  not  show  any  temporal  loss,  as  loss 
of  marriage,  or  the  like  ;  but  this  imagination  to  be 
divorced  is  not  to  any  purpose,  and  it  is  but  a  cause- 
less fear;  and  of  that  opinion  was  all  the  court. 

But  where  the  words  impute  an  offence  for  which,  / 
Though  of  spiritual  cognizance,  the  plaintiff  is  lia-  / 
ble  to  punishment  in  a  temporal  court,  they  are  ac-  • 
tionable. 

So  that  to  impute  incontinency  to  a  female  in  I 
London  is  actionable,  because  by  the  custom  of  the  ' 
city  she  is  liable  to  be  carted  for  her  offence.  |(1) 

*  1  Vin.  Ab.  392.  t  Cr.  J.  473. 

t  12  Mod.  106.  Holt.  R.  40. 1  Vin.  Ab.  395. 


(1)  So,  in  Connecticut,  words  imputing  to  a  woman,whether  married  or  single, 
a  violation  of  chastity,  are  in  themselves  actionable  ;  the  breach  of  chastity  in 
every  form — from  adultery  to  mere  lascivious  carriage — being  punishable  by 
statute.  Frisbie  v.  Foivler,  2  Conn.  Rep.  707.  In  Nctv-Jersey,  to  charge  a 
woman  with  having  committed  fornication  is  actionable ;  but  the  reason  as- 
signed is,  "  that  having  no  ecclesiastical  court  to  punish  the  offence  of  spiritual 
defamation,  an  action  will  lie,"     Smith  v.  Minor,  1  Coxe's  Rep.  16.     Lascivious 


2$ 

So  the  calling  a  woman,  living  in  the  borough  of 
Southwark,  "  whore,"  is  actionable,*  because  she  is 
liable  to  public  carting  by  prescription. 

So,  to  say  that  a  man  is  the  father  of  a  bastard, 
is  not  actionable,  unless  it  be  alleged  of  a  bastard 
likely  to  become  chargeable  to  the  parish,  for  other- 
wise he  is  not  liable  to  the  penalties  of  the  statute! 
of  Elizabeth. 

So  to  accuse  another  of  fornication  was  held  ac- 
tionable, whilst  the  statute  making  it  a  temporal 
offence  was  in  force. t 

Although    the    action  itself  is   limited   to  cases 
where   the    offence   charged    is  defined    by  law, 
yet,  as  has   been  shown,  the  placing  the  party  in 
jeopardy  is  not  the  exclusive  ground  of  action.     It 
may  be   asked  then,  since  the  loss  in  some  cases 
consists  solely  in  the  prejudice  to  the   plaintiff's 
character  in    society,   without   any  regard   to   his 
being  endangered  in  law,  how  happens  it  that  the  ex- 
tent of  the  action  is  confined  by  the  former  of  these 
circumstances,    and  is   not    coextensive  with   the 
latter  ?   The  answer  seems  to  be,  that  though  the 
presumption  of  prejudice  to  the  plaintiff's  charac- 

*  Keb.  418.  Sid.  97.  1  Vin.  Ab.  395. 
t  Salter  v.  Brown,  1  Vin.  Ab.  397.  Cro.  Car.  436.  J  2  Sid.  21. 

cohabitation  is  also  indictable  in  Massachusetts,  Resp.  v.  Calef,  10  Mass.  Rep. 
153.  But  in  New-York,  to  say  of  a  woman  "that  she  is  a  common  prostitute," 
is  not  actionable,  although  such  persons  are  punishable  as  disorderly  persons 
by  statute.  Brooker  v.  Coffin,  5  Johns.  Rep.  188.  Nor  to  charge  a  married 
woman  with  adultery.  Buys  v.  Gillespie,  2  Johns.  Rep.  115.  Adultery  and 
fornication  are  punishable  by  statute  in  Pennsylvania.  Purdon's  Digest,  238, 
consequently  words  charging  a  person  with  the  commission  of  those  crimes, 
would  be  actionable.  Brown  v.  Lamberton,  2  Binn.  34,  See  also,  3  Serg.  and 
Rawle,  261.  In  Kentucky  it  has  been  decided  that  to  charge  a  female  with 
want  of  chastity,  is  not  actionable.  Elliot  v.  Ailsbery,  2  Bibb's  Rep.  473.  So 
also  in  South  Carolina,  Shecutt  v.  M'Dowel,  Const.  Rep.  Tread.  Ed.  35.  Fo- 
bert  W.  et  u.v.  v.  E.  L.  1  Nott  and  M'Oord's  Rep.  205. 


29 

ter  in  society  is  frequently  the  most  serious  ground 
of  complaint,  yet  that  such  prejudice  does  not  in 
itself  furnish  a  rule  sufficiently  clear  to  determine 
the  extent  of  the  action.  Whence  it  becomes 
necessary  to  adopt  some  other  boundary,  which, 
though  not  exactly  commensurate  with  the  injury  to 
be  remedied,  may,  from  the  greater  certainty  and 
facility  with  which  it  can  be  applied,  conduce  in  the 
main  to  the  public  good. 

To  say  that  a  man  is  a  bad  father,  husband,  or 
son,  that  he  is  a  drunkard  or  liar,  or  to  charge  him 
with  want  of  veracity  in  a  single  instance,   must, 
if  the  imputation  be  believed,  induce  a  worse  opi- 
nion to  be  entertained  of  him  ;  and  therefore  be  con- 
sidered as  a  real  detriment  to  an  innocent  party. 
If  then  discredit  alone  were  to  be  adopted  as  the 
criterion,  the  action  would  extend  to  every  degree 
of  discredit ;  a  rule  highly  inexpedient,  both  on  ac- 
count of  the  endless  litigation  which  it  would  pro- 
duce, and  of  the  other  incident   mischiefs  which 
have  been  already  touched  upon ;  but  if  it  be  ad- 
mitted, upon  the    principle    of  expediency,   that 
some  limitation  be  necessary,  perhaps  none  could 
be  adopted  more  convenient  than  the  one  recog- 
nised by  the  law,  which  confines  the   action  to  im- 
putations of  offences  punishable  in   the  temporal 
courts.     The  rule  itself  has  the  advantage  of  clear- 
ness and  certainty   in  its  operation,   and  is  coex* 
tensive  with   our   criminal   code ;  and  it  is  to  be 
remembered,  that  where   imputations  do    not  fall 
within  its  scope,  yet  any  specific  damage  accruing 
to  the  party  in  consequence  of  them,  will  entitle  him 
to  a  remedv. 


30 

The  action  then  is  confined  to  cases  where  an 
offence  is  charged  punishable  in  the  temporal  courts, 
it  is  next  to  be  considered  whether  the  action  extends 
to  all,  or  to  what  portion  of  these. 

There  may  be  some  impropriety  in  supposing, 
that  a  violation  of  any  existing  law  is  not  in  some 
degree  discreditable ;  for  although  the  long  cata- 
logue of  crimes,  defined  in  our  penal  code,  exhibits 
guilt  in  an  almost  infinite  variety  of  shades ;  yet 
still  the  most  trivial  offender  cannot  in  strictness 
be  deemed  wholly  exempt  from  blame. 

In  many  instances,  however,  the  discredit  attach- 
ing to  the  commission  of  the  offence  charged,  is 
so  minute,  that  it  can  scarcely  be  considered  as 
the  ground  of  action  : 

The  defendant  said,  "  thou  hast  harboured  and 
received  thy  son  into  thy  house,  knowing  before, 
that  he  was  a  seminary  priest."*  It  was  held,  that 
the  words  were  scandalous  and  actionable,  the  of- 
fence having  been  made  felony  by  statute.!  Yet  it- 
can  hardly  be  presumed,  that  in  this  case  the  impu- 
tation could  seriously  injure  the  father's  character 
in  society,  and  consequently  the  remedy  was  given 
because  the  words  endangered  him  in  law. 

Though  much  has  been  said  upon  the  distinction 
between  mala  prohibita  and  mala  in  se,  the  solidity 
of  the  distinction  has  been  denied  by  great  autho- 
rities. As  far  as  regards  moral  action,  there  seems 
to  be  little  difference  between  these  two  species  of 
evil.  To  take  away  the  life  or  property  of  another, 
is  termed  malum  in  se,  because  the  allowing  such 
things  is  inconsistent  with  the  public  good :  it  is 
an  evil,  because  it  produces  misery,  and  because 

*  Smith  v.  Flynt,  Cro.  J.  300.  f  '27  Eliz.  c.  2. 


31 

this  is  sell-evident,  it  is  termed  malum  in  se.  Coin- 
ing and  larceny  are  both  prohibited  upon  the  same 
grounds,  because  each  is  inconsistent  with  the  well- 
being  of  society :  the  only  reason  for  terming  the 
one  malum  prohibitum,  and  the  other  malum  in  se, 
is,  that  the  latter  is  evidently  detrimental  and  per- 
nicious ;  the  former  is  found  to  be  so  from  expe- 
rience ;  but  the  moral  culpability  in  each  case  is  in 
exact  proportion  to  the  mischief  which  the  offence 
is  known  to  occasion,  and  has  no  reference  to  the 
mode  in  which  the  extent  of  the  mischief  is  ascer- 
tain ed 

It  would,  however,  be  refining  too  far  to  suppose, 
that  men  in  general  inquire  very  critically  into  the 
nature  of  moral  guilt ;  and  it  must  be  owned,  that  it 
would  be  impossible  to  persuade  the  mass  of  mankind, 
that  a  man,  whose  parental  feelings  had  urged  him 
to  supply  his  son  with  a  place  of  refuge,  was  no  bet- 
ter a  member  of  the  community  than  a  highwayman 
or  a  house-breaker. 

The  books  abound  with  cases  which  prove,  that 
a  charge  of  treason,  or  any  species  of  felony, 
whether  it  existed  at  Common  Law  or  was  so  con- 
stituted by  statute,  has  always  been  considered  as 
actionable  :  to  these  may  be  added  that  of  perjury, 
which  in  its  very  nature  tends  to  destroy  the  plain- 
tiffs credit  in  society  ;  the  courts  have,  however, 
gone  beyond  this,  and  imputations  of  many  other 
misdemeanors  have  given  rise  to  a  numerous  class 
of  decisions. 

In  Stone  v.  Smalcombe,*  the  defendant  having 
been  arrested  under  a  warrant  made  upon  a  latitat. 

*  On.  J.  648 


32 

said,  "  this  is  a  counterfeit  warrant,  made  by  Mr. 
Stone"  (the  plaintiff;)  and  though  it  was  alleged 
for  the  defendant  in  arrest  of  judgment,  that  forging 
a  warrant  was  not  a  forging  within  the  statute  of 
Elizabeth,  the  court  held,  that  the  words  were  ac- 
tionable^ 1) 

So  in  many  cases  the  charging  a  mere  solicita- 
tion or  attempt  to  commit  a  felony  has  been  held 
actionable.  In  Lady  Cockaine's  case,*  the  words 
were — "  my  Lady  Cockaine  did  offer  two  shillings 
to  a  woman  with  child  to  get  her  a  drink  to  kill  her 
child,  because  it  was  gotten  by  J.  S.  Sir  Thomas 
Cockaine's  butler."(2)  And  it  was  moved,  that  an 
action  did  not  lie  for  the  words ;  but  it  was  adjudged 
for  the  plaintiff,  for  by  them  it  was  said,  the  lady's 
credit  is  impaired  ;  and,  if  true,  there  was  cause  to 
bind  her  to  her  good  behaviour,  although  it  was  not 
said,  that  she  did  give  money,  or  that  any  hurt  was 
done. 

So  in  Tibbott  v.  Haynes,f  the  defendant  said, 
"  Tibbott,  and  one  Gough,  agreed  to  have  hired  a 
man  to  kill  me,  and  that  Gough  should  show  me 
to  the  hired  man  to  kill  me."  Upon  motion  in  ar- 
rest of  judgment,  J.  Gawdy  was  of  opinion,  that 
the  words  were  not  actionable,  because  it  was  not 
alleged  that  any  act  was  done  by  the  plaintiff,  nor 

*  Cro.  Eliz.  49.        t  Ibid.  191. 


(1)  It  has  been  decided  in  South  Carolina,  that  to  call  a  man  "  a  counter- 
feiter," is  actionable.  Howard  v.  Stevenson,  2  Rep.  Const.  C  So.  Carol.  408. 
See  Jarvisv.  Hathaway,  3  Johns.  Rep.  180. 

(2)  So  where  the  words  were,"  there  was  collusion  between  William  Johnston, 
*1aron  Hackney,  Levi  Arnold,  and  Peter  Rambo,  to  make  John  Bowman  swear  a 
false  oath  io  a  suit  before  Peter  Rambo,  between  Bowman  and  Hackney  and 
.frnold.1'     Johnetmi  v.  Tart,  6  BilM.  121. 


33 

any  thing  put  in  ure  by  him,  but  only  a  communi- 
cation between  him  and  Gough  ;  and  that  it  would 
have  been  otherwise  had  the  defendant  said,  "  he 
hired  a  man  to  kill  me."  But  Wray  and  Fenner, 
justices,  were  of  a  different  opinion,  and  judgment 
was  given  for  the  plaintiff.  In  Cardinal's*  case,  the 
words  were,  "  if  I  had  consented  to  Mr.  Cardinal, 
J.  H.  had  not  been  alive." — And  the  plaintiff 
had  judgment.  In  the  case  of  Eaton  v.  Allenf 
above  cited,  the  words  were,  "he  is  a  brabbler 
and  a  quarreller,  for  he  gave  his  champion  council 
to  make  a  deed  of  gift  of  his  goods  to  kill  me, 
and  then  to  fly  out  of  the  country,  but  God  pre- 
served me :"  and  though  the  former  cases  were  cited, 
judgment  was  arrested,  and  the  reason  given  in 
the  report  in  Croke  is,  "  that  the  first  words,  '  he 
is  a  brabbler,  &c.'  are  not  actionable ;  and  that  the 
latter  words,  commencing  with  lJor,'  did  not  con- 
tain any  express  affirmation."  But  Lord  Coke 
observes,  "that  it  was  adjudged  in  this  case  upon 
great  consideration  and  advisement,  that  the  words 
were  not  actionable  because  the  purpose  and  intent 
of  a  man  without  act  is  not  punishable  by  law  ;"  this 
reason  is,  however,  defective,  since  the  solicitation 
is  in  itself  an  act ;  and  this  case  was  overruled  in 
the  subsequent  one  of  Lewknor  v.  Crutchley.i 

The  defendant  there  charged  the  plaintiff  with 
having  "  set  upon  a  goldsmith  in  the  highway  with 
intent  to  rob  him."  It  was  contended  in  arrest  of 
judgment,  that  no  felony  was  charged,  but  a  mere 
misdemeanor ;  and  the  case  of  Eaton  v.  Allen  was 


i  Co.  16.  1 4  Co.  1C.  Cro.  Eliz.  634. 

\  Cr«.  Car.  140. 


34 

cited ;  but  the  court  delivered  their  opinions  seriatim, 
that  the  action  lay,  and  said,  "that  although  the  de- 
fendant charged  him  with  an  act  that  is  not  felony, 
vet  he  chargeth  him  not  only  with  the  intention,  but 
with  a  fact,  which  is  as  near  to  felony  as  may  be,  and 
with  such  an  offence  as  is  more  than  intent  only,  and 
more  than  riot,  and  for  which  fine  and  imprisonment 
are  due."  And  Jones,  J.  cited  Wicks's  case,  where 
the  defendant  said,  "  nine  persons  set  upon  me  to 
have  robbed  me,  and  you  (Wicks)  was  one  of  them :" 
and  it  was  adjudged  that  the  action  lay. 

If  any  distinction  can  be  made  between  the  two 
last  cases,*  it  consists  in  this;  that  in  the  former 
there  was  a  solicitation  only  to  commit  felony ;  in 
the  latter  there  was  an  overt  act  exercised  in  pursu- 
ance of  a  felonious  intention.  Such  a  distinction  is 
at  all  events  now  no  longer  available,  since  it  is  clear 
that  a  solicitation  to  commit  felony  constitutes  a  mis- 
demeanor.! 

So  where  the  charge  is  of  a  misdemeanor  not  at 
all  connected  with  felony. 

During  an  election  of  members;  to  serve  in  par- 
liament, the  defendant,  holding  up  money  in  his  hand, 
said  of  the  plaintiff,  who  was  a  candidate,  "  these 
guineas  are  Mr.  Bendish's  (the  plaintiff's)  money, 
and  were  given  me  to  vote  for  him ;  he  has  bought 
my  vote,  and  he  shall  have  it."  It  was  contended, 
in  arrest  of  judgment,  that  no  words  are  actionable 
unless  they  subject  the  plaintiff  to  a  temporal  pun- 
ishment, and  that  nothing  had  been  said  that  could 
subject  the  plaintiff  to  an  indictment  on  the  statute  ; 


*  i.  c.  Eaton  v.  Allen,  and  Lewknor  v.  Crutchley. 

1  '2  East,  6.  *  Bendisfa  v.  Lindsay,  11  Mod.  194 


DO 


but  Holt,  C.  J.  was  clearly  of  opinion,  that  the  ac- 
tion lay,  and  judgment  was  given  for  the  plaint  ill'. 
It  is  to  be  remarked,  that  bribery  was  an  offence  at 
Common  Law,*  and  punishable  by  indictment  or  in- 
formational) 

Where  a  commission  had  been  awarded f  out  of 
chancery,  to  the  plaintiff  and  three  others,  with  the 
assent  of  the  parties  to  a  suit,  to  examine  witnesses, 
and  to  hear  and  determine,  the  defendant,  who  was 
one  of  the  parties  (said  of  the  Plaintiff,)  "  Sir 
George  Moor  is  a  corrupt  man,  and  hath  taken 
bribes  of  Richard  King  (the  other  party  to  the 
suit :")  And  likewise  further  said,  "  Richard  King 
hath  set  Sir  George  Moor  on  horseback,  with  his 
bribes,  to  pervert  justice  and  equity."  Upon  motion 
in  arrest  of  judgment,  the  court  said,  "  that  the 
plaintiff  having  the  King's  commission  to  execute, 
if  he  take  bribes  to  execute  it,  it  is  a  breach  of  the 
trust  reposed  in  him,  and  is  so  great  an  offence,  that 
he  may  be  indicted  and  fined  at  the  common  law ;" 
and  the  plaintiff  had  judgment. 

To  charge  a  person  with  having  given  a  sum  of 
money  to  the  commissioners  to  be  made  purser  of 
a  man  of  war,  was  held  actionable  ;  such  an  offence 
being  a  corruption  of  a  public  trust,  and  a  crime 

*  Burr.  1335.  1359.  f  Sir  Geo.  Moor  v.  Foster,  Cro.  J.  65. 


(1)  In  Massachusetts,  where  the  law  inflicts  a  penalty  upon  him  who  puts  in 
two  votes  for  any  officer  at  an  election,  it  would  seem  to  be  actionable  to  say 
to  a  person  that  he  had  done  so ;  and  it  would  be  clearly  libellous  and  action- 
able, to  write  of  him  that  he  had  put  in  two  votes.  JValkerv.  Winn  8  Mass. 
Rep,  246.  So,  in  the  same  state,  as  it  is  incident  to  the  office  of  Town  Clerk 
to  receive  and  count  the  votes  given  in  for  a  Moderator  of  a  town-meeting,  it  is 
actionable  to  charge,  while  acting  in  his  said  office,  with  fraudulently,  privately, 
and  corruptly  destroying  a  vote  legally  deposited  by  a  voter  for  such  moderator, 
Dodds  v.  Henry,  9  Mass.  Rep.  262, 


m 

both  in  the  commissioners  and  the  person  tempting 
them,  and  the  words  therefore  actionable,  as  im- 
puting a  criminal  charge.*  (1) 

In  the  case  of  Sir  William  Russel  v.  Ligon,f  it 
was  adjudged  and  agreed,  that  an  action  lies  for 
charging  the  plaintiff  with  being  the  author  of  a 
libel,  though  the  making  a  libel  is  not  an  offence 
which  concerns  life  or  member,  but  punishable  only 
by  line  and  by  imprisonment  in  the  Star  Chamber, 
or  upon  an  indictment  at  Common  Law.  In  the 
principal  case,  it  seems,  however,  to  have  been 
averred  in  the  declaration,  that  the  plaintiff  was  a 
Justice  of  the  peace. (2) 

So  to  say,  a  person  keeps  a  bawdy-house  is  ac- 
tionable, because  the  offence  is  indictable  ;(3)  and 
though  it  has  been  held,  that  such  words  are  not 
actionable,  the  reason  on  which  the  judgment  was 
given  is  bad,  since  it  was  assumed,  i  that  the  offence 
was  not  indictable  at  Common  Law. 

So,  to  accuse  a  person  of  subornation  of  per- 
jury.§(l) 

So  the  charging  another  with  receiving  goods, 
knowing  them  to  be  stolen,  was  actionable,  whilst 
the   offence   remained  a  mere  misdemeanor,  and 

*  Purdy  v.  Stacey,  Burr.  2698. 

t  1  Vin.  Ab.  423.  pi.  27.  1  Com.  Dig   tit.  Action  on  the  case  for  defamation, 
8,  9.  1  Roll.  Ab.  46. 

J  Cro.  Eliz.  643.  sed  vid.  1  Roll.  44.  1  Buls.  138.  §  Cro.  J.  158, 

(1)  See  Lindsay  v.  Smith,  7  Johns.  Rep.  360.  Chipman  v.  Cook,  2  Tyl.  Rep. 
456. 

(2)  Andreas  v.  Koppenheafer,  3  Serg.  and  Rawle,  255. 

(3)  Martin  v.  Stilwell,   13  Johns,  Rep.   275.    See  Nettles  v.  Harrison,   2- 
M'Cord's  Rep.  230. 

(4)  Beers  v.  Strong,  Kirby's  Rep.  12. 


punishable  by  fine  and  imprisonment  at  Common 
Law. 

For  though  it  was  held  in  the  case  of  Dawes  v. 
Bolton,*  that  for  the  words  "  Thou  art  a  knave,  and 
hast  received  stolen  swine  ;  and  hast  received  a 
stolen  cow,  and  thou  knowest  they  were  stolen !" 
Yet  the  ground  of  decision  was,  that  the  words  were 
to  be  considered  in  mitiori  sensu ;  and  that  it  might 
be,  that  the  defendant  meant  that  the  plaintiff  had 
received  them  as  bailiff  or  lord  of  a  manor,  who  had 
liberty  to  have  waif's  and  felon's  goods  ;  ari8  it 
seems  to  have  been  allowed,  that,  had  a  guilty 
knowledge  been  intended,  the  words  would  have 
been  actionable.  In  Cox  v.  Humphreys,!  the  de- 
fendant said,  "  Thy  boy  (the  plaintiff's  son)  hath 
cut  my  purse,  and  thou  hast  received  it,  knowing 
it ;  and  hast  the  rings  and  money  that  were  there  in 
thy  hand  !"  And  it  was  held,  that  the  words  were 
not  actionable,  because  it  did  not  appear  that  a  fe- 
lonious taking  was  meant. 

And  it  seems  that  to  charge  a  brewer  with  selling 
unwholesome  beer  is  actionable,  since  the  selling 
such  beer  is  an  indictable  offence.%{\) 

In  Sir  Lionel  Walden  v.  Mitchell, §  the  defendant 
said,  that  the  plaintiff  went  to  mass,  and  the  words 
were  held  actionable  ;  since  by  the  statute  27  Eliz. 
c.  4.  the  offender  was  liable  to  forfeit  100/.,  and  to 
be  imprisoned  for  a  year. 

So,  whilst  the  statutes  against  witchcraft  were  in 

*  Cro.  Eliz.  88S.  »  t  Cro.  Eliz,  889. 

1  Vin.  Ab.  477.  Free.  25.  6  Bac.  Ab.  210.  §  2  Vent.  265. 

(1)  But  it  is  not  actionable  to  charge  a  person  with  offering  unwholesome 
provisions  for  sale  without  also  charging  that  he  knew  them  to  be  unwholesome, 
unless  special  damage  be  shown,    Hemmemcay  v.  Woods,  l  Pick.  Rep.  524. 


force,  it  was  held,  that  to  say  "  thou  art  a  witch  and 
a  sorcerer,"  was  actionable  :*  And  Gawdy  J.  said, 
"  If  he  bewitches  men  so  as  they  die,  it  is  felony  : 
if  he  uses  witchcraft  in  any  other  way,  he  shall 
stand  in  the  pillory  ;  so  that  it  is  a  slander  in  every 
respect,  and  a  good  cause  of  action." 

In  Mayne  v.  Digle,f  it  is  laid  down,  that  an  action 
lies  for  any  words  which  import  the  charge  of  a  crime 
for  which  a  person  may  be  indicted. 

From  these  instances  cited,  and  a  number  of  si- 
milar ones  to  be  met  with  in  the  reporters,  it  seems 
difficult  to  find  any  other  limit  for  the  extent  of  the 
action  than  that  laid  down  in  the  last  case ;  and 
though  there  are  dicta  and  decisions  to  the  contrary, 
both  may,  perhaps,  be  considered  as  borne  down  by 
the  current  of  the  authorities  cited,  and  others,  in 
which  words  have  been  considered  actionable,  as 
charging  an  indictable  offence. 

Thus  it  has  been  held,  that  no  action  lies  for  pub- 
lishing of  the  plaintiff,  that  he  is  a  regrator  ;+  and 
the  reason  given  is,  because  the  offence  of  regra- 
ting  is  not  punishable  by  loss  of  life  or  limb  ;  but 
this  decision  cannot  be  considered  as  law,  since  it  is 
contradictory  to  all  the  cases  last  cited. 

So  it  has  been  held,  that  for  the  words  "  Thou 
art  a  common  barretor,§  and  I  will  indict  thee  for  it 
at  the  next  assizes,"  no  action  lies. 

But  for  the  words,  "  Thou  maintainest  such  a 
suit,"  it  was  said  by  Popham  C.  J.,||  that  an  action 
had  been  held  maintainable  upon  good  deliberation, 
in  the  case  of  Sir  H.  Portman  v.  Stowell ;  mainte- 
nance being  unlawful  and  odious. 

*  Cro.  Eliz.  571.  Rogers  v.  Gravat.  t  Free,  46, 

X  Scoble  v.  Lee,  2  Show.  32.  §  Cro.  Eliz,  171,  Yel.  90. 

II  1  Vin.  Ab.  424.  pi.  34.  Mq.  428. 


39 

In  Ogden  v.  Turner,*  as  already  observed,  it 
was  expressly  held  by  Holt  C.  J.  that  to  render 
words  actionable  it  is  not  sufficient  that  the  party 
may  be  fined  and  imprisoned  for  the  offence.     For 
that  if  any  one  be  found  guilty  of  a  common  tres- 
pass, he  shall  be  fined  and  imprisoned  ;  yet  that  no 
one  would  assert,  that  to  say  one  has  committed  a 
trespass,  will  bear  an  action.     This  dictum,  how- 
ever, was  materially  contradicted  by  what  fell  from 
Ld.  C.  J.  De  Gray,  in  giving  judgment  in  the  case 
of  Onslow  v.  Horne.f     In  that  case  he  observed, 
"  As*  far  as  I  can  collect,  for  determinations,  in  ac- 
tions for  words,  there  seem  to  be  two  general  rules 
whereby  courts  of  justice   have  governed  them- 
selves, in  order  to  determine  words  spoken  of  an- 
other to  be  actionable.     The  first  rule  is,  that  the 
words  must  contain  an  express  imputation  of  some 
crime  liable  to  punishment — some  capital  offence 
or  other  infamous  crime  or  misdemeanor  ;  and  the 
charge  upon  the  person  spoken  of  must  be  pre- 
cise.    In  the  case  of  Ogden  and  Turner,  the  words 
are,  'Thou  art  one  of  those  that  stole  my  Lord 
Shaftesbury's  deer  !'  and  were  not  held  actionable  ; 
for  though  imprisonment  be  the    punishment   in 
those    cases,    yet  per   Holt   C.J.     "It  is  not  a 
scandalous  punishment ;  a  man  may  be  fined  and 
imprisoned  in  trespass  ;  for,  says  he,  there  must  not 
only  be  imprisonment  but  an  infamous  punishment. 
I  think  Lord  Holt  carries  it  too  far,  as  to  precision  ; 
for  it  is  laid  down  in  Finch's  Law,*  "If  a  man  ma- 
liciously utters  any  false  slander,  to  the  endangering 
one  in  law,  as  to  say,  «  He  hath  reported  that  money 

•  -*lk.  696.  Holt,  40.  t  3  Wils.  177.  %  1S5, 


40 

is  fallen,'  for  he  shall  be  punished  for  such  report." 
Here  is  the  case  of  a  crime,  and  the  punishment 
not  infamous ;  and  yet  Finch  seems  to  say,  that  an 
action  lies  for  these  words."(l) 

In  Holt  v.  Scholefield,*  Mr.  J.  Lawrence  ob- 
served, with  regard  to  the  case  in  Bulstrode,f  "  I 
think  Mr.  Justice  Williams  goes  too  far  in  saying, 
that  words  that  tend  to  the  infamy,  discredit,  or  dis- 
grace, of  the  party,  are  actionable. 

The  most  correct  rule  is  laid  down  in  Onslow  v. 
Home.  The  words  must  contain  an  express  im- 
putation of  some  crime  liable  to  punishment,  some 
capital  offence,  or  other  infamous  crime  or  misde- 
meanor. There  is  also  a  case  in  Siderfin,t  which 
is  in  direct  contradiction  to  the  case  in  Bulstrode."(2) 

In  many  of  the  cases  where  charges  of  crime 
have  been  held  actionable,  it  is  observable  that 
stress  has  been  laid  upon  the  terms  scandalous  and 
infamous •,  used  as  descriptive  either  of  the  crime 
charged  or  the  punishment  appertaining  to  it.  Al- 
though this  affords  some  reason  to  infer,  that  the 
actionable  quality  does  not  extend  to  all  charges  of 

*6T.  R.  691.  t  1  Buls.  40.  %  1  Sid.  48. 


(1)  The  supreme  court  of  Pennsylvania  have  recognised  distinctly  the  rule 
ag  laid  down  in  Brooker  v.  Coffin,  (5  Johns.  Rep.  183,)  "  that  the  charge,  if 
true,  must  subject  the  party  to  an  indictment  for  a  crime  involving  moral  <wr- 
pitude,  or  that  would  draw  after  it  an  infamous  punishment."  The  judges 
concurred  in  opinion,  that  it  must  be  either  a  felony  or  a  misdemeanor,  affecting 
reputation ;  and  therefore  to  charge  a  man  with  having  committed  an  assault 
and  battery,  a  nuisanee,  or  the  offence  of  forcible  entry  and  detainer,  though  the 
party  would  be  subject  to  indictment  and  imprisonment,  would  not  be  action- 
able. Andreas  v.  Koppenheaffer,  3  Serg.  and'  Rawle,  255.  See  also  19  Johns. 
Rep.  367. 

(2)  See  also  2  Conn.  Rep.  61  and  62,  where  the  authorities  overruling  the 
dictum  in  Bulstrode  are  cited  by  Could  J. 


11 

misdemeanor  for  which  line  and  imprisonment 
mav  be  inflicted,  yet  a  distinction  of  this  nature 
seems  unwarranted  by  the  cases,  and  would  afford 
a  very  dubious  rule,  the  terms  scandalous  and  in- 
famous being  of  themselves  words  of  very  indefinite 
import.  It  would  be  a  very  difficult  task  to  ascer- 
tain the  precise  point  in  the  scale  of  offences  where 
infamy  and  scandal  cease  to  attach,  and  misdemea- 
nor assumes  a  more  respectable  character. 

From  these  authorities,  perhaps,  it  may  be  infer- 
red  generally,   that,   to   impute   any   crime   or 

MISDEMEANOR  FOR  WHICH  CORPORAL  PUNISHMENT 
MAY  BE  INFLICTED  IN  A  TEMPORAL  COURT,  IS  AC- 
TIONABLE WITHOUT  PROOF  OF  SPECIAL  DAMAGE. 

Where  the  penalty  for  an  offence  is  merely  pe- 
cuniary, it  does  not  appear  that  an  action  will  lie 
for  charging  it ;  even  though  in  default  of  payment, 
imprisonment  should  be  prescribed  by  the  statute, 
since  imprisonment  is  not  the  primary  and  immediate 
punishment  for  the  offence.* 

Any  objection  as  to  the  extent  of  the  above  rule,  is 
in  a  great  measure  obviated  by  the  statute  of  James  L 
which,  where  the  damages  given  do  not  amount  to 
forty  shillings,  limits  the  costs  to  the  amount  of  the 
damages  :  this  wholesome  provision  was  found  of 
great  use  in  confining  this  species  of  litigation, 
(which  had  before  increased  to  a  prodigious  extent,) 
within  narrower  and  more  convenient  boundaries. 

The  rule  seems  also  founded  in  strong  reason. 
The  privilege  of  censure,  to  a  certain  extent,  ope- 
rates as  a  beneficial  and  necessary  restraint  upon 
conduct ;  but  the  advantage  ceases  where  the  law 

*  6  Mod.  104. 

6 


12 

can  interfere  and  visit  wrong-doers  with  prescribed 
punishments  :  there  the  office  of  the  private  censurer 
seems  to  terminate,  superseded  as  he  is  by  a  more 
competent  authority,  armed  with  appropriate  pow- 
ers for  the  protection  of  the  community. 

2dly.  In  what  manner  must  the  offence  be  im- 
puted ? 

Where  the  imputation  contains  a  direct  charge 
of  crime  in  precise  terms,  little  difficulty  can  occur 
in  the  application  of  the  foregoing  rule.  In  most 
instances,  however,  an  unpremeditated  use  of  words 
of  doubtful  meaning,  or  an  intentional  selection  of 
them,  for  the  purpose  of  impunity,  have  occasioned 
much  perplexity  and  litigation.  In  a  great  pro- 
portion of  cases,  the  question  has  been,  not  whether 
a  charge  of  a  specific  offence  is  actionable  ?  but 
whether,  in  fact,  any  offence  has  been  charged  by 
the  words  ?  The  rule  of  law  requires,  that,  to 
ground  an  action,  "  words  imputing  crime  must  be 
precise  ;"  but  it  is  by  no  means  essential,  that  they 
shall  carry  on  the  face  of  them  an  open  and  direct 
imputation.  Such  a  rule,  it  is  clear,  would  afford 
no  security  against  calumny,  which  may  be  as  ef- 
fectually conveyed  in  artful  allusions  to  collateral 
matter,  and  oblique  insinuations,  as  by  assertions 
the  most  explicit. 

It  is,  however,  incumbent  upon  the  party  who 
complains  that  he  has  suffered  from  an  imputation 
of  crime,  to  show  with  certainty,  the  injurious  na- 
ture of  the  communication. 

In  order  to  establish  this  point  two  circumstances 
are  necessary : — 

1st.  That  the  words  or  signs  used  should  either 
of  themselves,  or  by  reference  to  circumstances, 


13 

be  capable  of  the  offensive  meaning  attributed  to 
them. 

2dly.  That  the  defendant  did,  in  fact,  use  them  in 
that  sense. 

The  capability  of  the  words  or  signs  to  bear  a 
particular  construction,  roust,  it  is  evident,  appear 
upon  the  plaintiff's  statement  of  his  case  ;  for  other- 
wise it  would  not  judicially  appear  that  he  was  en- 
titled to  recover.  That  the  defendant  did,  in  fact, 
use  them  in  that  sense,  is  a  matter  of  evidence  to  be 
decided  upon  the  trial,  which  will  be  a  subject  for 
future  consideration.  It  may,  however,  be  neces- 
sary to  observe  here,  that  if  it  appear  from  the 
words  or  signs  themselves,  or  from  circumstances, 
that  they  are  capable  of  conveying  the  particular 
meaning  attributed  to  them  by  the  plaintiff,  it  will, 
after  verdict  for  the  plaintiff,  be  taken  for  granted, 
that  the  words  and  signs  were,  in  fact,  used  to  con- 
vey such  meaning ;  for  that  is  a  matter  upon  which 
the  jury  alone  can  decide,  and  which  they  must  be 
convinced  of  before  they  can  give  their  verdict  for 
the  plaintiff. 

Any  objection,  therefore,  to  the  words  or  signs 
as  stated  upon  the  record,  is  grounded  upon  the 
supposition  that  it  does  not  sufficiently  appear,  that 
they  are  capable  of  an  actionable  meaning. 

It  will  be  proper,  therefore,  next  to  consider  the 
different  kinds  of  ambiguities  which  may  arise,  not 
only  in  the  particular  case  where  crime  has  been 
charged  and  where  doubt  most  frequently  occurs, 
but  with  relation  to  cases  of  slander  and  libel  in 
general,  which  are  governed  by  the  same  rules  of 
construction. 


4-1 

Words  or  signs  may  be  divided  into  three 
classes : — 

1st.  Those  which  bear  an  obvious  and  precise 
meaning  on  the  face  of  them ;  as  if  A.  said  to  B., 
"  You  murdered  C." 

2dly.  Those  which  on  the  face  of  them  are  of 
dubious  import,  and  are  capable  either  of  a  criminal 
or  innocent  meaning;  as  if  A.  say  to  B.,  "You 
were  the  death  of  C" 

3dly.  Those  which  are  prima  facie  and  abstract- 
edly innocent,  and  which  derive  their  offensive  qua- 
lity from  some  collateral  or  extrinsic  circumstance  ; 
as  if  A.  say  to  B.  "You  did  not  murder  C. !"  which 
words,  from  the  ironical  manner  of  speaking  them, 
may  convey  to  the  hearers  as  unequivocal  a  charge 
of  murder  as  the  most  direct  imputation. 

With  respect  to  ambiguities  arising  out  of  the  se- 
cond and  third  classes,  it  is  now  the  settled  rule  of 
law,  that,  both  judges  and  juries  shall  understand 
words  in  that  sense  which  the  author  intended  to  con- 
vey to  the  minds  of  the  hearers,  as  evinced  by  the 
whole  circumstances  of  the  case.  That  it  is  the  pro- 
vince of  the  jury,  where  such  doubts  arise,  to  decide, 
whether  the  words  were  used  maliciously  and  with  a 
view  to  defame,  such  being  matter  of  fact  to  be  col- 
lected from  all  concomitant  circumstances ;  and  for 
the  court  to  determine,  whether  such  words,  taken  in 
the  malicious  sense  imputed  to  them,  can  alone,  or  by 
the  aid  of  the  circumstances  stated  upon  the  record, 
form  the  legal  basis  of  an  actional) 

(1)  "  Precedents,  says  Judge  Duneau,  delivering  the  opinion  of  the  supreme 
court  of  Pennsylvania,  in  the  case  of  Wallon  v.  Singleton,  7  Serg.  and  Rawle, 
451,  in  actions  for  words  are  of  less  authority  than  in  any  other  ca3e — there  is 
a  principle  of  common  sense,  that  now  governs  in  their  construction — it  is,  that 
words  shall  not  be  taken  in  their  mildest  sense  ;  nor  shall  they  be  strained  by 


45 

It  was  long,  however,  before  this  rule,  rational 
as  it  is,  and  supported  by  every  legal  analogy,  pre- 
vailed in  actions  for  words ;  and  before  the  favour- 
ite doctrine  of  construing  words  in  their  mildest 
sense,  in  direct  opposition  to  the  finding  of  the  jury, 
was  finally  abandoned  by  the  courts. 

A  very  few  specimens  of  cases  where  the  doc- 
trine of  the  benignior  sensus  was  allowed  to  prevail, 
may  be  deemed  sufficient^  1)  "  Thou  art  as  arrant  a 
thief  as  any  in  England  ;  for  thou  hast  broken  up 
J.  S.'s  chest,  and  taken  away  40/."  After  verdict 
for  the  plaintiff,  the  court,  on  motion  in  arrest  of 
judgment,  held,  that  the  action  lay  not :  for,  he 
showeth  not  that  he  stole  any  money,  or  robbed 
him  of  any  money ;  for  an  action  is  not  to  be  main- 
tained by  intendment,  but  by  express  words,  and 
the  words  do  not  prove  any  felony  committed ;  for 
the  money  may  be  taken  away,  and  the  chest  broken 
open  in  the  midday,*  and  in  the  presence  of  divers ; 
and  therefore  it  is  not  any  felony. 

The  defendant  said,f  ""Thou  art  a  lewd  fellow ; 
thou  didst  set  upon  me  by  the  highway,  and  take 
my  purse  from  me,  and  I  will  be  sworn  to  it !" 
After  judgment  for  the  plaintiff,  error  was  assigned, 
because  the  words  did  not  charge  the  plaintiff  with 
felony,  nor  with   any  felonious  taking  away;  and 

*  Foster  v.  Browning,  Crw.  J.  687. 
t  Holland  v.  Stoner,  Cro.  J.  315. 


any  forced  construction  beyond  their  natural  meaning,  and  common  accepta- 
tion. Courts  and  juries  will  understand  them  in  the  same  way  that  other  peo- 
ple would.  We  are  not  to  examine  Dictionaries,  nor  turn  to  our  Law  Books, 
to  find  out  their  legal,  technical  meaning."  See  also  2  Dall.  Rep.  58.  2  Binn. 
37. 1  Coxe's  Rep.  25. 1  Wash.  Rep.  152.  1  Hayw.  Rep.  129. 1  Bibb's  Rep.  593. 
12  Johns.  Rep.  240.  5  Serg.  and  Rawle,  392. 8  Mass.Rep.255. 13  Mass.Rep.  254. 
(1)  See*5  Serg.  and  Rawle,  392. 


.      46 

it  may  be,  he  took  away  the  purse  in  jest,  or  for 
some  other  cause  ;  and  of  that  opinion  were  all  the 
Judges  and  Barons.  The  defendant  said,*  "  Thou 
art  a  thievish  rogue,  and  hast  stolen  bars  of  iron  out 
of  other  men's  windows !"  It  was  held,  that  the 
action  lay  not ;  for  the  bars  of  iron  are  parcel  of 
the  freehold,  and  the  stealing  of  them  is  not  any  fe- 
lony ;  and  it  shall  not  be  intended  of  bars  lying  in 
windows,  as  was  objected  that  it  might  be ;  for  it 
shall  be  taken  in  the  best  sense  for  the  defendant. 
And  it  was  said,  that  it  was  adjudged  in  one  Bridge's 
case,  that  for  saying,  "  thou  art  a  thief,  and  hast 
stolen  my  corn  in  the  field,"  no  action  lies  ;  for  it 
shall  be  intended  standing  corn,  which  is  not  felony; 
wherefore  it  was  adjudged  for  the  defendant. 

In  King  v.  Bagg.f  In  error.  The  action  was  for 
the  words,  "Mr.  J.  D.  was  robbed  of  40/.,  and  100 
marks'  worth  of  plate,  and  Alice  Bagg  (the  plain- 
tiff) and  J.  S.  had  it,  and  for  which  they  will  be 
hanged  !"  And  after  verdict  and  judgment  for  the 
plaintiff,  it  was  assigned  "for  error,  that  an  action 
lies  not  for  these  words ;  for  he  doth  not  say  that 
she  stole  it,  and  it  may  be  that  they  came  to  it  by 
lawful  means  ;  and  although  he  saith  that  they 
will  be  hanged  for  it,  these  words  by  themselves 
will  not  maintain  an  action,  and  they  do  not  en- 
force the  first  words  ;  wherefore  the  judgment  was 
reversed. 

"Thou£  dost  lead  a  life  in  manner  of  a  rogue,  I 
doubt  not  but  to  see  thee  hanged  for  striking  Mr. 
Sydman's  man  who  was  murdered !"  And  it  was 
held  that  the  words  were  not  actionable,  for  they 

*  Cra.  J.  204.  t  Cro.  J.  331 .  Mb.  331.  Jcnk.  302, 


17 

are  not  positive  for  the  murder  of  Mr.  Sydman's  ser- 
vant ;  he  might  be  beaten  by  the  plaintiff,  and  mur- 
dered by  another.  Actions-  of  slander  do  not  lie 
upon  inference. 

It  seems  unnecessary  to  adduce  more  instances 
of  the  prevalence  of  this  rule  of  construction  ;  the 
following  may  be  adduced  in  support  of  the  doc- 
trine which  now  prevails. 

In  Ceely  v.  Hoskins,*  in  error.  The  words  were, 
"  Thou  art  forsworn  in  a  court  of  record,  and  that  I 
will  prove  !"(l)  It  was  contended,  after  verdict  for 
the  plaintiff,  that  the  action  would  not  lie,  because 
he  did  not  say  in  what  court  of  record  he  was  for- 
sworn, nor  that  he  was  forsworn  in  giving  any  evi- 
dence to  the  jury;  that  it  might  be  intended  only 

*  Cro.  Car.  SOD. 


(1)  "The  rule,"  says  Chief  Justice  Thompson,  "  in  relation  to  these  and  si- 
milar words,  is,  that  where  one  person  calls  another  a  perjured  man,  it  shall  be 
intended  that  the  same  was  in  a  court  of  justice,  and  to  have  a  necessary  refer- 
ence to  it ;  but  for  a  charge  of  false  swearing,  no  action  lies,  unless  the  decla- 
ration shows  that  the  speaking  of  the  words  had  reference  to  a  judicial  court  or 
proceeding."  Therefore  to  say  of  a  person,  "  he  has  sivom  falsely,"  or  "  he  has 
taken  a  false  oath  against  me  in  squire  Jamison's  court,"  have  been  held  not  to 
be'  actionable,  because  they  must  not  be  necessarily  understood  as  conveying 
a  charge  of  perjury ;  and  because  it  did  not  appear  from  any  colloquium  that  /*■ 
mison  had  any  authority  to  hold  any  court  known  to  the  law,  or  to  administer 
an  oath.  fVard  v.  Clark,  2  Johns.  Rep.  10.  See  also  Hopkins  v.  Beadle,  I 
Caine's  Rep.  347.  Vaughan  v.  Havens,  8  Johns.  Rep.  109.  Poioer  v.  Miller,  2 
M'Cord's  Rep.  220.  Jishbell  v.  Witt,  2  Nott  and  M'Cord's  Rep.  364.  Crook- 
shank  v.  Grey,  et  tar.  20  Johns.  Rep.  315.  Dwinells  v.  Aikin,  2  Tyl.  Rep.  75* 
Rue  v.  Mitchell,  2  Dall.  Rep.  58,  is  a  strong  case,  and  may  be  said  to  be  over- 
ruled by  that  of  Shaeffer  v.  Kintzcr,  1  Binn.  537.  and  Parker  v.  Spangler,  et  ux. 
2  Binn.  60.  In  Kentucky  it  has  also  been  decided  that  to  say  of  another,  "he 
had  sworn  to  a  lie,"  without  any  colloquium  concerning  a  judicial  proceeding, 
was  not  actionable.  Watson  v.  Hampton,  2  Bibb's  Rep.  319.  The  rule  in  Mas- 
sachusetts seems  to  be  different ;  for  where  one  said,  "  you  swore  false  at  the 
trial  of  your  brother  John,"  without  any  averment,  that  the  words  were  spoken 
concerning  the  testimony  given  by  the  Plaintiff  at  the  trial  referred  to,  the  words 
were  held  actionable  after  verdict.  Foicle  v.  Bobbins,  12  Mass.  Rep,  496,  Sec 
also  Hamilton  v.  Dent,  1  Hayw.  Rep.  1  ,Rv 


48 

» 
that  he  was  forsworn,  not  judicially,  but  in  ordinary 
discourse  in  some  court  of  record  :  But  (per  Croke) 
"  Jones,  Berkeley,  and  myself,  held  clearly  that  the 
action  well  lay,  and  .that  such  foreign  intendment  as 
Maynard  (for  the  defendant)  pretended,  shall  not  be 
conceived,  and  it  shall  be  taken  that  he  spake  these 
words  maliciously,  accusing  him  of  perjury ;  and 
for  a  false  oath  taken  judicially,  upon  judicial  pro- 
ceedings in  a  court  of  record  ;  and  shall  be  taken 
according  to  the  common  speech  and  usual  intend- 
ment ;  as  to  say,  such  a  one  is  a  murtherer,  without 
saying  whom  he  murdered,  or  when  an  action  lies ; 
and  it  shall  not  be  intended  that  he  was  a  murtherer 
of  hares,  unless  such  foreign  intendment  be  shown 
or  discovered  in  pleading." 

In  Baal  v.  Baggerley.*  The  words  were,  "  Thou 
hast  forged  a  privy  seal,  and  a  commission  !  Why 
dost  thou  not  break  open  thy  commission  ?"  And 
after  verdict  for  the  plaintiff,  it  was  contended  for 
the  defendant,  that  the  words  were  not  actionable ; 
for  it  did  not  say  the  king's  privy  seal,  nor  any  writ 
under  the  privj^  seal ;  also  he  said  not  what  commis- 
sion ;  and  the  words  subsequent  "  thy  commission," 
showed  that  he  meant  a  commission  made  by  the 
plaintiff  himself:  but  the  judges,  having  taken  time 
to  consider  (Berkeley  doubting)  afterward,  deli- 
vered their  opinions — "  That  the  action  well  lies  ; 
for  the  words  be  spoken  maliciously  ;  and  being  al- 
leged in  the  declaration,  that  he  spake  them  to  scan- 
dalize him,  for  forging  of  the  privy  seal  and  com- 
mission ;  and  being  found  guilty,  it  shall  be  intended 
according  to  the  vulgar  interpretation,  to  mean  the 

*  Cro.  Car.  326. 


king's  privy  seal,  the  counterfeiting  whereof  is  trea^ 
son  ;  and  a  commission' shall  be  intended  the  king's 
commission,  under  the  privy  seal ;"  and  Berkeley 
agreed  with  the  others. 

In  Somers  v.  House.*  The  words  were,  "  You 
are  a  rogue,  and  broke  open  a  house  at  Oxford ; 
and  your  grandfather  was  forced  to  bring  over  30/. 
to  make  up  the  breach  !"  And  after  verdict  for  the 
plaintiff,  it  was  moved,  in  arrest  of  judgment ;  be- 
cause, rogue,  is  not  actionable  ;  and  breaking  open 
the  house,  but  a  trespass  ;  and  making  up  the  breach, 
might  be  repairing;  but  the  court  seemed  col  ary: 
for,  upon  all  the  words  together,  a  man  who. 
heard  them  could  not  intend  other  than  a  felonious 
breaking  of  the  house  ;  and  though  in  the  old  books 
the  rule  ivas,  to  take  the  ivords  in  mitiori  sensu,  yet 
per  Holt,  they  would  take  the  ivords  in  a  common 
sense,  according  to  the  vidgar  intendment  oj  the  by- 
standers. 

In  Baker  v.  Pierce. f  The  words  were,  "Baker 
stole  my  box-wood,  and  I  will  prove  it !"  After 
verdict  for  the  plaintiff,  Sergeant  Darnell  moved,  in 
arrest  of  judgment,  that  these  words  are  not  action- 
able ;  for  they  shall  be  taken  to  mean  wood  grow- 
ing, or  the  like,  whereof  only  a  trespass  can  be  com- 
mitted. That  to  say,  you  are  a  thief,  and  have  stolen 
my  timber  or  my  apples,  or  my  hops,  is  not  action- 
able :  for  where  words  import  either  a  felony  or  a 
trespass,  they  shall  be  taken  in  the  mildest  sense, 
unless  there  be  other  words  to  determine  them  in 
the  worse  sense  :  as  to  say,  he  stole  my  timber  out 
of  my  yard,    or  my  hops   in    a  bag;   and   cited 

*  Holt,  39.  +  Lord  Ray.  959.  6  Mod.  234.  Holt.  654,    , 

7 


59 

MaSon  v.  Thompson* — "  I  charge  thee  with  fe- 
lony for  taking  forth  from  J.  D.'s  pocket,  and  I  will 
prove  it !"  The  words  were  held  not  to  be  action- 
able, because  it  should  not  be  intended  to  mean  a 
felony,  not  being  directly  affirmed.  But  Holt  C.  J. 
and  the  court  denied  that  case  to  be  law,  for  the 
taking  out  of  a  man's  pocket  must  be  intended  a  felo- 
nious taking. 

For  the  Plaintiff  it  was  contended,  that  the  words, 
according  to  common  parlance,  imported  a  thing  of 
which  felony  might  be  committed. 

And  afterward  the  court  gave  judgment  for  the 
plaintiff;  Powell  J.  observing,  "  The  case  cited  by 
my  brother  Darnell,  is  so,  but  the  later  books  are 
contrary ;  and  I  will  stick  to  the  later  authorities, 
being  grounded  on  so  much  reason." 

In  the  case  of  Burges  v.  Boucher.f  The  court 
observed,  "  There  are  several  cases  wherein  it  has 
been  adjudged,  that  where  words  may  be  taken  in 
a  double  sense,  the  court,  after  a  verdict,  ivill  always 
construe  them  in  that  sense  which  may  support  the 
verdict" 

The  plaintiff  brought  his  action  for  the  words, 
"  He  is  a  clipper  and  a  coiner  \"\  After  a  verdict 
for  the  plaintiff,  it  was  moved,  in  arrest  of  judgment, 
that  the  words  did  not  charge  the  plaintiff  with 
clipping  or  coining  money ;  for  they  may  be  applied 
te  many  other  things  ;  but  judged  actionable,  for  it 
must  be  intended  that  he  meant  the  clipping  of  mo- 
ney, and  in  that  sense  it  is  usually  understood. 

In  Harrison  v.  Thornborough.§     The  court  ob- 

*  Hutt.  38.  t  8  Mod.  240. 

t  3  Salk.  325.  2  Vent.  172-  2  Lev.  51.  2  Sir  T.  Jo.  235. 

f  10  Mod.  W«. 


served,  that,  "Precedents  in  actions  tor  words  are 
not  of  equal  authority  as  in  other  actions,  because, 
norma  loquendi  is  the  rule  for  the  interpretation  ot 
words,  and  this  rule  is  different  in  one  age  from  what 
it  is  in  another.   The  words  which  a  hundred  years 
ago  did  not  import  a  slanderous  sense,  now  may, 
and  vice  versa.     In  this  kind  of  actions  for  words, 
which  are  not  of  very  great  antiquity,  the  courts  did 
at  first,  as  much  as  they  could,  discountenance  them, 
and  that  for  a  wise  reason ;  because  generally  brought 
for  contention  and  vexation,  and  therefore,  where 
the  words  were  capable  of  two  constructions,  the 
court  always  took  them  mitiori  sensu.    But,  latterly, 
these  actions  have  been  more  countenanced  ;  for 
men's  tongues  growing  more  virulent,  and  irrepara- 
ble damage  arising  from  words,  it  has  been,  by  ex- 
perience, found,  that  unless  men  can  get  satisfaction 
by  law,  they  will  be  apt  to  take  it  themselves.     The 
rule,  therefore,  that  has  now  prevailed,  is,  thai  words 
tire  to  be  taken  in  that  sense  that  is  most  natural  and 
obvious,  and  in  which  those  to  whom  they  are  spoken 
will  be  sure  to  understand  them." 

In  Button  v.  Hayward  and  his  wife.*  The  words 
spoken  by  the  wife  were,  "  George  Button  (the 
plaintiff)  is  the  man  who  killed  my  husband  !"  her 
first  husband  being  dead.  After  verdict  for  the 
plaintiff,  it  was  moved  in  arrest  of  judgment,  that 
these  words  are  not  actionable  for  the  uncertainty 
of  the  word  killing,  for  it  might  be  justifiable,  or  in 
his  own  defence,  or  per  infortunium,  and  shall  not 
be  presumed  felonious,  and  so  made  actionable  by 
intendment :  for  it  is  a  maxim,  that  words  shall  be 

*  ?  Mod.  21. 


52 

£aken  in  mitiori  sensu.     But  it  was  said  by  Pratt  £>y 
J.  "  There  can  be  no  question  but  at  this  day  these 
words  are  actionable.     In  former  times,  words  were 
construed  in  mitiori  sensu,  to  avoid  vexatious  ac- 
tions, which  were  then  too  frequent ;  but  now  dis- 
tinguenda  sunt  tempora  :  and  we  ought  to  expound 
words  according  to  their  general  signification,  to 
prevent  scandals,  which  are  at  present  too  frequent. 
We  are  to  understand  words  in  the  same  sense  as 
the  hearers  understood  them  ;  but  when  words  stand 
indifferent,  and  are  equally  liable  to  two  distinct  in- 
terpretations, we  ought  to  construe  them  in  mitiori 
sensu;  but  we  will  never  make  any  exposition  against 
the  plain  natural  import  of  the  words."  "The  word 
killing  signifies  a  voluntary  and  unlawful  killing,  and 
is  actionable.     There  are  a  great  number  of  odd 
eases  in  the  books  ;"  And  by  Eyre  J.  "  The  words 
are  to  be  taken  in  their  ivorse  sense,  for  a  malicious 
and  felonious  killing."    And  by  Fortescue  J.    "  The 
maxim  for  expounding  words  in  mitiori  sensu,  has 
for   a  great  while  been  exploded,  near  50  or  60 
years." 

It  was  observed  by  Lord  Mansfield  in  the  King 
v.  Home,*  "  It  is  the  duty  of  the  jury  to  construe 
plain  words  and  clear  allusions,  to  matters  of  uni- 
versal notoriet)r,  according  to  their  obvious  mean- 
ing, and  as  every  body  else  who  reads  must  under- 
stand them :  but  the  defendant  may  give  evidence 
to  show  they  were  used  on  the  occasion  in  question 
in  a  different  or  qualified  sense.  If  no  such  evidence 
is  given,  the  natural  interpretation  of  the  words,  and 

*  1  Cowp.  672. 


53 

the  obvious  meaning  to  every  man's  understanding 
must  prevail. 

"  If  courts  of  justice  were  bound  by  law  to  study 
for  any  one  possible  or  supposable  case,  or  sense,  in 
which  the  words  used  might  be  innocent,  such  a  sin- 
gularity of  understanding  might  screen  an  offender 
from  punishment,  but  it  could  not  recall  the  words, 
or  remedy  the  injury.  It  would  be  strange  to  say, 
and  more  so  to  give  out  as  the  law  of  the  land,  that 
a  man  may  be  allowed  to  defame  in  one  sense,  and 
defend  himself  in  another ;  such  a  doctrine  would 
indeed  be  pregnant  with  the  nimia  subtilitas  which 
my  Lord  Coke  so  justly  reprobates." 

In  the  case  of  Peake  and  Oldham,*  Lord  Mans- 
field said,  "  After  verdict,  shall  the  court  be  guess- 
ing and  inventing  a  mode  in  which  it  might  be  bare- 
ly possible  for  these  words  to  have  been  spoken  by 
the  defendant,  without  meaning  to  charge  the  plain- 
tiff with  being  guilty  of  murder  ?     Certainly  not ! 
Where  it  is  clear  that  words  are  defectively  laid,  a 
verdict  will  not  cure  them ;  but  where,  from  their 
general  import,  they  appear  to  have  been  spoken 
with  a  view  to  defame  the  party,  the  court  ought 
not  to  be  industrious  in  putting  a  construction  upon 
them  different  from  what  they  bear  in  the  common 
acceptation  and  meaning  of  them.     I  am  furnished 
with  a  case,  founded  in  strong  sense  and  reason,  in 
support  of  this  opinion.     The  name  of  it  is  Ward 
v.  Reynolds,  Pasch.  12  Ann.  B.  R.  and  it  is  as  fol- 
lows : — The  defendant  said  to  the  plaintiff,  '  I  know 
you  very  well !  How  did  your  husband  die  V    The 
plaintiff  answered,  *  As  you  may,  if  it  please  God  f.' 

T  Oowp.  277, 


64 

The  defendant  replied,  <  No  ;  he  died  of  a  wound 
you  gave  him  !'  On  not  guilty,  there  was  a  verdict 
for  the  plaintiff;  and  on  a  motion  in  arrest  of  judg- 
ment, the  court  held  the  words  were  actionable, 
because,  from  the  whole  frame  of  them,  they  were 
spoken  by  way  of  imputation  ;  and  Lord  C.  J. 
Parker  said,  *  It  is  very  odd,  that  after  a  verdict,  a 
court  of  justice  should  be  trying  whether  there  may 
not  be  a  possible  case  in  which  words  spoken  by 
way  of  scandal  might  not  be  innocently  said ;  where- 
as, if  that  were  in  truth  the  case,  the  defendant 
might  have  demurred,  or  the  verdict  would,  have 
been  otherwise.'  So  here,  if  shown  to  be  innocently 
spoken,  the  jury  might  have  found  a  verdict  for  the 
defendant ;  but  they  have  put  a  contrary  construc- 
tion upon  the  words  as  laid,  and  have  found  that  the 
defendant  meant  a  charge  of  murder." 

In  the  King  v.  Watson  and  others.*  Mr.  Justice 
Buller  observed,  "  Upon  occasions  of  this  sort,  I 
have  never  adopted  any  other  rule  than  that  fre- 
quently stated  by  Lord  Mansfield  to  juries,  desiring 
them  to  read  the  paper  stated  to  be  a  libel,  as  men 
of  common  understanding,  and  say,  whether,  in 
their  minds,  it  conveys  the  sense  imputed." 

In  Woolnoth  v.  Meadows,!  it  was  observed  by 
Le  Blanc  J.  "  That  (after  a  verdict  for  the  plaintiff) 
it  is  not  sufficient  to  show,  by  argument,  that  the 
words  will  admit  some  other  meaning  ;  but  the  court 
must  understand  them  as  all  mankind  would  under- 
stand them  :  and  we  cannot  understand  them  differ- 
ently in  court  from  what  they  would  do  out  of  court. 

In  Roberts  v.  Cambden,|  which  was  an  action  for 

*  2  T.  R.  206.  1  5  East,  463.  t  0  East  96, 


■)0 

a 


words  alleged  by  the  plaintiff  to  contain  an  iniputu 
tion  of  perjury.  After  a  verdict  for  the  plaintiff,  on 
a  motion  in  arrest  of  judgment,  on  the  ground  that 
the  words  did  not  impute  the  crime  with  sufficient 
certainty,  Lord  Ellenborough  C.  J.  in  delivering 
judgment,  observed,  "  The  question  simply  is — 
Whether  the  words  amount  to  such  a  charge  ?  that 
is,  whether  they  are  calculated  to  convey  to  the 
mind  of  an  ordinary  hearer  an  imputation  on  the 
plaintiff  of  the  crime  of  perjury.  The  rule  which 
at  one  time  prevailed,  that  the  words  are  to  be  un- 
derstood in  mitiori  sensn,  has  been  long  ago  super- 
seded ;  and  words  are  now  construed  by  courts,  as 
they  always  ought  to  have  been,  in  the  plain  and 
popular  sense  in  which  the  rest  of  the  world  natu- 
rally understand  them."  And  in  concluding,  the 
same  learned  Judge  observed,  that,  "  without  ad- 
verting to  the  long  bead-roll  of  conflicting  cases 
which  have  been  cited  on  both  sides  in  the  course 
of  this  argument,  it  is  sufficient  to  say,  that  these 
words,  fairly  and  naturally  construed,  appear  to  us 
to  have  been  meant,  and  to  be  calculated  to  convey 
the  imputation  of  perjury  actually  committed  by  the 
person  of  whom  they  are  spoken  ;  and  that,  there- 
fore, the  rule  for  arresting  the  judgment  must  be 
discharged." 

From  these  cases,  containing  the  opinions  of 
some  of  the  most  enlightened  Judges  of  their  own 
or  any  times,  it  may  be  collected — 

1st.  That  where  words  are  capable  of  two  con- 
structions, in  what  sense  they  were  meant  is  a  matter 
of  fact  to  be  decided  by  the  jury. (I) 

(1)  M'Kinley  v.  Rob,  20  Johns.  Rep.  356.  Dexter  v.  Tuber,  12  Johns.  Rep. 
240.  The  King  v.  Buiddt,  4  Bam.  and  AM.  314.  See  Van  Vevhlen  v.  Hcrp* 
kins,  5  Johns.  Rep.  21 1 . 


5£> 

idly.  That  they  are  to  be  guided  in  forming  their 
opinion  by  the  impression  which  the  words  or  signs 
used  were  calculated  to  make  on  the  minds  of  those 
who  heard  or  saw  them,  as  collected  from  the  whole 
of  the  circumstances. 

3dly.  That  such  words  or  signs  will,  after  a  ver- 
dict for  the  plaintiff,  be  considered  by  the  courts  as 
having  been  used  in  their  worst  sense. 

With  respect  to  words,  which  on  the  face  of  them 
are  harmless,  and  which  derive  their  offensive  mean- 
ing wholly  from  extrinsic  circumstances,  the  preced- 
ing observations  are  applicable :  the  use  of  such 
words  and  signs  as  do  in  effect  injure  the  reputation 
of  an  individual,  are  as  much  within  the  mischief  as 
the  most  open  charges  :  The  grievance  is,  the  loss 
of  character ;  and  by  what  means  the  wrong  is 
effected  is  perfectly  immaterial,  either  as  to  the  suf- 
fering of  the  party,  or  the  policy  of  the  law  pro- 
viding him  a  remedy. 

The  defendant  wrote  a  pamphlet,*  called  "Advice 
to  the  Lord  Keeper,  by  a  Country  Parson ;"  wherein 
he  would  have  him  love  the  church  as  well  as  the 
Bishop  of  Salisbury — manage  as  well  as  Lord 
Haversham — be  brave  as  another  Lord ;  and  so 
gave  every  Lord  a  character,  ironically ;  and  so  it 
was  set  forth  in  the  information,  and  the  jury  found 
him  guilty.  Upon  motion  in  arrest  of  judgment,  it 
was  shown  for  cause,  to  arrest  judgment,  that  there 
was  no  cause  to  charge  the  defendant,  because  he 
said  no  ill  thing  of  any  person ;  and  all  he  said  was 
good  of  them.  But  to  this  it  was  answered,  and  re- 
solved by  the  court,  that  this  was  laid  to  be  ironical ; 
find  whether  it  ivas  so  or  not,  the  jury  were  judges ; 

*  Holt.  R.  425. 


->/ 


they  iound  it  so.  And  that  if  this  were  not  a  crime, 
the  defendant  might,  by  contraries,  libel  any  per- 
son. 

Having  thus  inquired  what  the  general  rules  of 
construction  are,  as  adopted  by  the  courts,  their  ap- 
plication to  the  class  of  cases  where  crime  is  im- 
puted, and  the  degree  of  certainty  and  particularity 
requisite  to  render  such  charges  actionable,  will 
next  be  considered. 

The  charge,  to  be  actionable,  must  in  general,  as 
already  stated,  impute  to  the  plaintiff  an  act  of  a 
criminal  nature. 

There  are,  however,  some  exceptions  to  this 
rule  ;  as  where  treason  is  imputed  ;  one  species  of 
which  offence  consists  in  the  compassing  and  imagin- 
ing the  death  of  the  king ;  which  words  signify 
nothing  more  than  the  purposed  design  of  the  mind, 
and  not  the  carrying  such  design  into  effect.* 

In  the  case  of  Sir  John  Sydenham  v.  Man,f  the 
words  were,  "  If  Sir  J.  S.  might  have  his  will,  he 
would  kill  the  king  !"  and  they  were  held  action- 
able, although  they  referred  to  the  will  only  ;  since 
it  is  a  great  offence  to  have  such  a  will. 

So  where  the  party  is  charged  with  misprision  of 
felony  ;i  as  where  the  defendant  said,  "  He  knew 
of  the  murder  of  L.  and  did  not  reveal  it  till  long- 
after  it  came  to  his  knowledge ."|| 

In  other  cases  it  must  appear, 

I.  That  some  act  was  imputed  by  the  defendant. 

II.  That  such  act  is  of  a  criminal  nature. 

III.  That  it   was  meant  to  be   imputed  to  the 

PLAINTIFF. 

*  1  Haw.  pi.  C  SG.         1  Cro.  J.  407,  I  Vid.  at.  West.  1 .  3  Ed.  1 .  <-.  9 

:  Yd.  154.  1  Vin.  Ab.  446. 


58 

I.  Thai  some  act  was  imputed  by  the  defendant. 

The  imputation  of  an  act  may  be  inferred, 

1st.  Although  the  terms  of  the  communication 
be  indirect. 

2dly.  Although  the  act  imputed  be,  in  legal 
strictness,  impossible* 

1st.  Where  the  terms  of  the  communication  are 
indirect,  it  may  be  laid  down  as  a  general  rule,  that, 
wherever  words  are  used,  calculated  to  impress 
upon  the  minds  of  the  hearers  a  suspicion  of  the 
plaintiff's  having  committed  a  criminal  act,  such 
an  inference  may  and  ought  to  be  drawn,  whatever 
form  of  expression  may  have  been  adopted.  And 
although  such  forms  of  expression  may  be  reduced 
under  general  heads,  and  examples  cited  under  each 
to  illustrate  this  rule,  yet,  contradictory  and  incon- 
sistent as  many  of  the  cases  are,  a  reference  to  them 
cannot  be  considered  as  of  essential  importance  ; 
the  rule  itself  being  so  well  established,  that  no 
case  in  contradiction  to  it  can  now  be  considered 
as  a  precedent. 

It  may,  however,  be  deemed  proper  to  select  a 
few  instances  of  cases  falling  under  each  division. 

Where  the  terms  of  the  communication  are  in- 
direct, the  imputation  of  an  act  committed  may  be 
inferred.  Where  the  defendant  expresses  a  suspi- 
cion or  opinio?!,  or  institutes  a  comparison,  or  delivers 
the  words  as  matter  of  hearsay,  or  by  way  of  interro- 
gation or  answer,  or  exclamation,  or  uses  disjimctive 
or  adjective  words,  or  speaks  ironically  ;  or,  in  ge- 
neral, where  the  statement  virtually  includes  or 
assumes  the  commission  of  the  principal  net.  or 
Ntrong-  suspicion  of  il 


09 

From  words  of  suspicion  or  opinion.  Yeoman 
said  of  Hext,*  "  For  my  ground  in  Allerton, 
Hext  seeks  my  life  ;  and  if  I  could  find  John  Silver, 
I  do  not  doubt  hut  within  two  days  to  arrest  Hext 
for  suspicion  of  felony."  It  was  adjudged,  that  for 
the  first  part  of  the  words,  "  for  my  ground  in  Al- 
lerton, Hext  seeks  my  life,"  no  action  lay,  for  two 
reasons  ; — 1st.  because  he  may  seek  his  life  lawfully 
and  upon  just  cause,  and  his  land  may  be  held  of 
him.  2dly.  Seeking  of  his  life  is  too  general ;  and 
for  seeking  only  no  punishment  is  inflicted  by 
]aw. — But  for  the  latter  words,  is  was  adjudged, 
that  the  action  lay ;  because  for  suspicion  of  felony 
he  shall  be  imprisoned,  and  his  life  drawn  in  ques- 
tional) 

The  defendant  hearing  that  his  father's  barns 
were  burnt,  said,f  "  I  cannot  imagine  who  should 
do  it  but  the  Lord  Sturton,"  and  the  words  were 
held  actionable. 

An  action  lies  for  publishing  of  the  plaintiff,  "1 
think,  or  I  dreamed,  he  committed  a  certain  fe- 
lony f\  for  although  the  words  are  not  directly 
affirmative,  the  plaintiff  may,  by  reason  of  them, 
be  arrested  upon  suspicion  of  having  committed  that 
felony. 

The  defendant  said,  "  He  is  infected  of  the  rob- 
bery and  murder  lately  committed,  and  doth  smell 
of  the  murder  ;"||  and  the  plaintiff  had  judgment, 
after  long  deliberation  and  argument  ;  and  this  de- 


*  4  Co.  15.  Poph.  210.  Latch.  176.  3  Buls.  262. 

t  Mo.  142. 1  Vin.  Ab.  435.pl.  13. 

I  Smith  v.  Wisdome,  Cro.  Eliz.  348.  C  Bac.  Ab.  227.  §  1  Vin.  Ab.  43b 


tit  See  Harrison  v.  King,  7  Taunt.  Rrp.  431.  S.  C.  4  Trine,  4C 


cision  was  cited  and  approved  of  in  a  number  oi 
subsequent  cases.* 

So  for  the  words,  "lam  thoroughly  convinced 
that  you  are  guilty,"  &c.  for  "I  am  thoroughly  con- 
vinced,"! is  equal  to  a  positive  averment :  a  man 
only  avers  a  thing  because  he  is  convinced  of  the 
truth  of  it.(l) 

So  for  the  words,  "  If  thou  hadst  thy  rights, 
thou  hadst  been  hanged  for  such  a  felony,"!  an  ac- 
tion lies. 

From  words  of  comparison.  The  defendant  said, 
"  You  are  as  great  a  rogue  as  J.  S.,  who  stole 
quilts  H 

So  for  saying,  "  Thou  art  as  arrant  a  thief  as 
any  in  England,"§  an  action  lies. 

So  for  the  words,  "  As  sure  as  God  governs  the 
world,  and  King  James  this  kingdom,  J.  N.  hath 
committed  treason."^ 

From  .  words  of  hearsay.  As  where  the  defen- 
dant said,  "  A  womail  told  me  that  she  heard  one 
say,  that  Meggs,  his  wife,  had  poisoned  Griffin,  her 
first  husband,  in  a  mess  of  milk."** (2)  And  in  case 
of  words  so  spoken,  it  seems  immaterial  whether  the 
speaker  really  heard  the  words  or  not ;  unless,  as 
will  afterward  be  seen,  at  the  time  of   repeating 

*  3  Bulst.  249.  God.  90.  Hutt.  58.  Cart.  214. 

t  Peake  v.  Oldham,  Cowp.275  }  Brownl.  3. 

||  Upton  v.  Pinfold,  Com.  267.  §  Cro.  J.  687.  IT  Sid.  53. 

**  Golds.  139.  Mo.  408.  Cro.  E   645. 

(1)  So  for  the  words,  "my  watch  has  been  stolen  in  M.'s  bar-room,  and  I 
have  reason  to  believe  T.  took  it,"  &c.  Miller  v.  Miller,  8  Johns.  74.  See  also 
Bornman  v.  Boyer,  3  Binii.  515.  So  "  I  will  venture  any  thing  he  has  stolen 
my  book,"  JVi/e  v.  Otis,  8  Mass.  Rep.  122.  "  I  have  every  reason  to  believe 
be  burnt  the  barn,"  Logan  v.  Steele,  1  Bibb's  Rep.  593. 

(2)  Per  Yeates,  3,  3  Binn.  518. 


<>1 

them  he  aftbrd  the  plaintiff  a  cause  of  action  against 
the  original  author.* 

From  words  of  interrogation.];  As  where  the 
defendant  said,  "  When  wilt  thou  bring  home  the 
nine  sheep  thou  stolest  from  J.  N.  ?"t(l) 

So  an  action  lies  for  saying,  "  Did  you  hear  that 
J.  S.  is  guilty  of  treason  ?"|| 

A.  the  wife  of  B.  was  asked  by  C.  "Wherefore 
will  your  husband  hang  J.  S.?"§  She  answered, 
"  For  breaking  our  house  in  the  night,  and  stealing 
our  goods."  The  words  were  held  actionable,  since, 
notwithstanding  they  were  spoken  in  answer  to 
a  question,  they  amount  to  a  charge  of  stealing 
goods. 

The  defendant  published  the  following  advertise- 
ment ; — "This  is  to  request,  that  if  any  printer  or 
other  person  can  ascertain  that  James  Delany,  Es- 
quire (the  plaintiff,)  some  years  since  residing  at 
Cork,  late  Lieutenant  in  the  North  Lincoln  Militia, 
was  married  previous  to  nine  o'clock  in  the  morn- 
ing of  the  10th  of  August,  1799,  they  will  give  no- 
tice, &c,  and  receive  the  reward."f  And  it  was  left 
by  Lord  Ellenborough  C.  J.  to  the  jury  to  say, 
whether  the  advertisement  imputed  a  charge  of  bi- 
gamy to  the  plaintiff.  (2) 

*  Woolnoth  v.  Meadows,  5  East,  463.  Oro.  J.  162.  406. 
tFor  words  of  interrogation  in  general,  see  Mo.  418.  pi.   573.  2  Rol.  Rep 
165.  Palm.  66.  12  Rep.  134.  Cro.  J.  422.  Keb.  359.  pi.  52. 
%  Hunt  v.  Thimblethorpe,  Mo.  41S.  1  Vin.  Ab.  429. 

Earl  of  Northampton's  case,  12  Rep.  134. 
§  Hayward  v.  Naylor,  1  Rol.  Abr.  50. 
IT  Delany  v.  Jones,  4  Esp.  R.  191. 

(1}  Sawyer  v.  Eiffert,  2  Nott  and  M'Cord's  Rep.  511.     So  where  the  words 

were,  "  What  is  the  woman  that  makes  a  libel  ?"  &c.  Andreas  v.  Koppenheafcr, 

3  Serg.  and  Rawle,  255.     "■  Why  did  you  steal  my  meal  ?"  Edie  v.  Brooks,  Sup. 

Ct.  Penn.  1S14.  MS.  .  .  *     „ 

(2)  See   Brown  v.   Croome,  2  Starkie's   Rep.  297.   Alkimon   v.   Hartley,  1 

M'Cord's  Rep.  203. 


8i 

So  where  the  words  are  spoken  by  way  of  excla- 
mation :  as,  "  That  perjured  villain  !"* 

From  disjunctive  ivords.  It  has  been  said  that, 
where  two  charges  are  made  disjunctively,  one  of 
which  is  actionable  and  the  other  not,  no  action 
lies  ;  as  where  the  defendant  said,  "  Thou  hast 
stolen  my  mare,  or  didst  consent  to  the  stealing  of 
her."f  It  was  held,  that  the  action  was  not  main- 
tainable, on  account  of  the  latter  words.  And  so 
where  a  charge  was  imputed  in  the  alternative  ;  as 
where  the  defendant  said,  "  Sparkham  did  steal  a 
mare,  or  else  Godwin  is  forsworn  !"  Although  it 
was  averred  that  Godwin  never  did  swear  any  such 
matter,  the  charge  was  held  too  indirect  to  bear  an 
action. 

In  tTie  case  of  Stirley  v.  Hill,t  the  words  were, 
"Thy  brother  was  whipped  about  Taunton  Cross! 
for  stealing  sheep ;  or  burned  in  the  hand  or  shoul- 
der." And  the  court,  after  verdict  for  the  plaintiff, 
were  of  opinion  that  the  words  did  not  import  any 
certain  slander. 

These  decisions,  however,  can  scarcely  be  con- 
sidered as  precedents  at  this  day,  since  it  is  clear 
that  a  charge  of  felony  may  be  completely  convej*-. 
ed  by  such  disjunctive  imputations  ;  and  were  they 
not  actionable,  the  legal  consequences  of  slandering 
might  in  every  case  be  easily  avoided. 

The  same  objection  once  prevailed,  where  the 
person  and  not  the  act  was  stated  in  the  disjunc- 
tive. 

The  defendant  said,  "  She  had  a  child,  and 
either  she  or  somebody  else  made  way  with   it  !"|; 

Roll.  Ali  7fi  tCro.Eliz.7P0.         J  Cro.  Car.  2S3.        UCart.55,  56 


iili 

And  three  justices  against  the  opinion  of  Bridgmaii 
C.  J.  adjudged,  that  the  words  were  not  actionable. 
But  in  a  subsequent  case  this  decision  was  over- 
ruled ;*  and  upon  the  same  principle,  no  doubt,  it 
would  now  be  held,  that  words  imputing  a  criminal 
act  in  the  disjunctive,  are  also  actionable. 

From  adjective  words.  Where  the  words  impute 
inclination  only,  they  are  not  actionable  ;  as  to  say 
"  J.  S.  is  a  murderous  villain  !"f  Bui  where  the  par- 
ticle is  used,  it  is  otherwise  ;  as  to  say,  "  J.  S  is  a 
murthering  villain  !"t  The  words  in  the  former  case 
importing  an  inclination  only,  in  the  latter  an  act 
done.  So  the  words,  "  Dr.  Sybthrop  is  robbing 
the  church,"||  were  held  actionable  ;  and  to  say  such 
a  person  is  robbing  such  a  man,  or  ravishing  such  a 
woman,  is  actionable. 

So,  "  Where  is  that  long  shag-haired,  murthering 
rogue  ?"  was  held  actionable. § 

For  the  words,  "  Traitorous  knave,"  an  action 
has  been  held  maintainable,  though  not  for  the 
words,  "  Rebellious  knave  ;"  and  perhaps  this  dis- 
tinction may  now  be  considered  as  good  law,  al- 
though many  of  the  nice  subtleties  which  were  for- 
merly in  fashion  are  now  disregarded  ;  since,  though 
traitorous  be  a  mere  adjective,  not  implying  any 
act,  yet  the  circumstance  of  the  offence  frequently 
consisting  in  intention  only,  may  well  constitute 
this  case  an  exception  to  the  general  rule. If 

It  is  laid  down  by  Sir  Edward  Coke,**  that  some- 
times adjective  words  will  maintain  an  action,  and 
sometimes  not.     They  are  actionable. 

*  Harrison  v.  Thornborough,  10  Mod.  196. 

j  Ld.  Ray.  236.  Cro  Car.  318. 

Kol.  Ab.  70.  §  Cro.  Car.  318.  Jo.  326 

"  Cro.  r.liz.17!.  Lev.  90  '  •   1  Cfo.  19 


64 

1.  When  the  adjective  presumes  an  act  com- 
mitted. 

2.  When  they  scandalize  a  person  in  his  office, 
or  function,  or  trade,  by  which  he  gets  his  living. 
As  if  a  man  says,  "  That  one  is  a  perjured  knave  !" 
there  must  be  an  act  done,  for  otherwise  he  cannot 
be  perjured.  The  words,  "  seditious  and  thievish 
knave,"*  have  been  held  not  actionable. 

And  the  distinction  has  been  frequently  taken, 
that  "  thieving  rogue,"  imports  an  act;  "thievish 
rogue,"f  an  inclination  only.(l) 

So  for  the  words,  "  You  are  no  thief  !"f  an  action 
lies,  if  they  be  spoken  ironically. (2) 

And  next,  the  imputation  of  an  act  may  be  infer- 
red from  a  statement,  which  virtually  includes  or 
assumes  the  commission  of  the  principal  act,  or  a 
strong  suspicion  of  it. 

The  defendant  said,  "I  could  prove  J.  S.  perjur- 
ed, if  I  would  !"||  and  the  words  were  held  actionable ; 
since,  if  true,  J.  S.  must  have  committed  an  act  of 
perjury. 

So  where  the  defendant  said,  "  Thou  art  a  rogue, 
a  runaway  rogue,  and  didst  run  away  from  Oxford ; 
and  thou  art  a  rogue  of  record."§  The  words  were 
held  actionable  ;  for  if  true,  the  plaintiff  must  have 
been  convicted  of  record. 

The  defendant  said  to  the  plaintiff,  "  In^f  Black- 
bull  Yard  you  could  procure  broad  money  for  gold. 

i  Rep.  19.  Cro.  .1.  65,  66.  2  Bulst.  133.  Ld.  Ray.  236. 
t  Dorrel  v.  Grove,  Fraem.  279. 

I  1  Vin.  Ab.  430.  pi.  8.  I|  1  Vin.  Ab.  406.  pi.  2. 

§  Sty.  220.  1  Vin.  Ab.  415.  fl  Salk.  697.  Speed  v.  Parry. 


(I)  IVallon  v.  Singleton,  7  Sere;,  and  Rawlc,  449. 

ee  what  i.=  soidbv  Tilghman,  C.  T.  3  Binti.  5V, 


ti.> 

and  clip  it  when  you  had  so  done."  It  was  ob- 
jected that  the  words  were  not  actionable,  since 
they  merely  imputed  a  power,  and  not  an  act.  But 
the  court  held,  that  the  limitation  to  place  implied 
an  act ;  for  that,  if  a  power  alone  had  been  meant  to 
be  imputed,  the  limitation  to  place  would  have 
been  unnecessary — a  power  to  do  being  the  same  at 
all  places. 

So  in  Home  v.  Powell.*  The  defendant  said, 
"  You  may  well  spend  money  at  law,  for  you  can 
coin  money  out  of  halfpence  and  farthings  !"  It  was 
held,  that  the  words  were  actionable,  as  implying  an 
an  act  ;  for  by  a  mere  power,  the  plaintiff  could 
never  be  able  to  spend  money  at  law. 

The  defendant  said  of  the  plaintiff,  "  He  was 
put  in  the  round-house,  for  stealing  ducks  at  Crow- 
land  ;"f  and  judgment  was  given  for  the  plaintiff. 
For  though  the  court  were  at  first  of  opinion,  that 
they  were  bound  by  former  authorities,  and  that  if 
judgment  were  to  be  given  for  the  plaintiff,  many 
actions  would  arise  at  every  assizes  in  the  kingdom, 
where  the  common  topic  of  conversation  is,  that 
such  a  man  was  sent  to  jail  for  such  a  crime  ;  yet, 
afterward,  they  changed  their  opinion,  and  held, 
that  the  jury  having  found  the  words  falsely  spoken, 
they  clearly  imported  that  the  plaintiff  had  been 
guilty  of  a  crime:  that  the  objection  was,  that  the 
words  did  not  expressly  allege  that  the  plaintiff  had 
stolen  the  ducks,  but  that  words  must  be  taken  ac- 
cording to  common  parlance.  And  so  in  a  number 
of  other  cases,  the  asserting  the  plaintiff  to  have 
been  confined   or  punished  %  for  a  certain  offence, 

*  Balk.  C07.  t  Bcavor  v.  Hides,  2  Wils.  3Q0.  Cro.  •'•  247 

9 


66 

has  been  held  actionable,  since  the  imputation,  at 
all  events,  throws  strong  suspicion  upon  him. 

So  where  the  defendant  said,  "He  is  under  a 
charge  of  prosecution  for  perjury  ;  G.  W.  had  the 
Attorney  General's  instructions  to  prosecute."*  It 
was  held,  that  the  words  were  actionable,  as  being 
calculated  to  convey  the  imputation  of  perjury. 

So  where  the  defendant  said  of  the  plaintiff, 
"  His  character  is  infamous  :  he  would  be  disgrace- 
ful to  any  society.  Whoever  proposed  him  must 
have  intended  it  as  an  insult ;  I  will  pursue  him  and 
hunt  him  from  all  society.  If  his  name  is  enrolled 
in  the  royal  academy,  I  will  cause  it  to  be  erased, 
and  will  not  leave  a  stone  unturned  to  publish  his 
shame  and  infamy.  Delicacy  forbids  me  from  bring- 
ing a  direct  charge  ;  but  it  was  a  male  child  of  nine 
years  old  who  complained  to  me."f 

So  where  the  defendant  said,  "  I  dealt  not  so 
unkindly  with  you,  when  you  stole  my  stack  of 
corn."t 

The  defendant  said  to  a  husband  in  London, 
"  You  are  a  cuckoldy  old  rogue  !"||  and  the  words 
were  held  actionable,  since  they  imply,  that  the  wife 
is  a  whore,  for  which,  by  the  custom  of  the  city,  she 
is  liable  to  temporal  punishment. 

Words  imputing  intention  only  to  commit  crime, 
are  not  actionable  of  themselves,  unless  in  the  case 
where  the  intention  is  of  a  treasonable  nature.§ 

As,  if  one  say  to  another,  "Thou  wouldest  have 
killed  me," II  no  action  lies. 

*  Roberts  v.  Campdcn,  0  East,  33. 

*  Woolnotb.  v.  Meadows,  5  East,  463. 

J  Cooper  v.  Hawkswell,  2  Mod.  58.  ||  1  Str.  47t. 

§  Cro.  J.  407. 

"  Pr.  Foe's  case,  cited  by  Coke  and  Ilaughton,  2  Buls.  206. 1  Vin.  Ab.  44«* 


■  ■■< 


So  tor  the  words,  "  She  would  have  cut  hex 
husband's  throat,  and  did  attempt  it,"*  an  action  lies  ; 
because  an  attempt,  that  is  an  act,  is  charged  ;  but 
in  the  same  case  it  was  held,  that  for  the  first  words, 
"  she  wrould  have  cut  her  husband's  throat,"  no  ac- 
tion could  be  maintained. 

2dly. .  Where  the  act  charged  is,  in  legal  strict- 
ness, impossible. 

Where  a  criminal  charge  is  conveyed  by  the  de- 
fendant's expressions,  the  liability  to  make  repara- 
tion cannot  be  affected  by  any  impropriety  in  the 
terms  of  the  communication,  whether  legal  or  gram- 
matical ;  since  the  loss  of  character,  and  its  proba- 
ble consequences,  constitute  the  ground  of  actioii, 
without  reference  to  the  means  emploj^ed.  The 
contrary  doctrine,  indeed,  at  one  time  prevailed. 

It  has  been  holden,  that  if  a  married  woman  say, 
"  You  have  stolen  my  goods,"f  the  words  are  not 
actionable,  the  words  being  repugnant ;  for  since  a 
married  woman  cannot  have  goods  of  her  own,  she 
cannot  be  robbed  of  any. 

But  in  Charnel's  case,t  which  was  earlier  than  the 
preceding,  the  wife  said,  "  My  turkeys  are  stolen, 
and  Charnel  hath  stolen  them  ;"  and  the  same  ob- 
jection being  made  in  arrest  of  judgment,  the  court 
said,  "  The  wife  did  charge  the  plaintiff  with  steal- 
ing her  turkeys  ;  and  if  a  person  who  had  no  horse 
were  to  publish  these  words,  '  J.  S.  hath  stolen  my 
horse,'  the  discredit  would  be  as  great  to  J.  S.  as  if 
the  publisher  had  had  a  horse  ;  for  every  person 
nvho  heareth  the  words  may  not  know  whether  he 


*  Lane,  03.  1  Vin.  Ab.  410.  pi.  P.  '  1  Roll.  Ab,  74.  6  Bsc.  Ab.  23S. 

.  Cro.  TA\7..  270. 


had  a  horse  or  no."  And  in  the  subsequent  case  of 
Stamp  v.  White,*  the  defendant's  wife  said,  "  Thou 
art  a  thievish  rogue,  for  thou  hast  stolen  my  fagots  !" 
Although  it  was  objected  that  the  words  were  with- 
out meaning  ;  since  a  married  woman  could  not  have 
property  of  her  own,  yet  it  was  held,  that  the  words 
were  actionable  ;  and  it  was  to  be  understood  accord- 
ing to  common  intendment,  that  the  defendant 
charged  the  plaintiff  with  stealing  her  husband's 
fagots. 

So  where  the  defendant  said,  "These  guineas 
are  Mr.  Bendish's  (the  plaintiff's,)  and  were  given 
me  to  vote  for  him."f  It  was  urged,  on  motion  in  ar- 
rest of  judgment,  that  the  words  are  insensible  ;  for 
that  when  the  plaintiff  has  given  money  to  the  de- 
fendant, it  cannot  be  the  plaintiff's  money ;  but  judg- 
ment was  given  for  the  plaintiff. 

The  older  cases,  indeed,  carried  the  doctrine  of 
repugnancy  to  a  very  unreasonable  extent ;  and  the 
courts  arrested  judgments,  not  only  on  the  ground 
that  an  actual  inconsistency  appeared  on  the  face  of 
the  record,  but  even  where  no  inconsistency  appear- 
ed, because  such  might  by  possibility  exist. 

The  rule,  however,  seems  to  be  now  established, 
that  no  inconsistency,  or  want  of  grammatical  pro- 
priety, will  prevent  the  words  from  being  actionable, 
where  the  intention  to  charge  the  plaintiff  with  the 
commission  of  a  crime  plainly  appears.(l) 

IT.  The  criminal  quality  of  the  matter  charged 
must  appear  with  certainty. 

*  Cro.  Jac."600.  1 11  Mod.  174. 

(1)  Cited,  recognised,  and  the  rule  said  to  be  well  established,  in  Walton  v. 
8tn§kton. 


69 

This  may  appear, 

1st.  From  the  use  of  general  terms  of  known 
legal  import. 

2dly.  From  circumstances  explaining  the  mean- 
ing of  terms  otherwise  doubtful,  or  innocent. 

3dly.  From  the  mere  description  of  the  circum- 
stances constituting  the  offence. 

1st.  From  the  use  of  terms  of  known  legal  im- 
port. 

It  seems  once  to  have  been  understood,  that  no 
charge  was  actionable,  when  conveyed  in  terms, 
which  did  not  particularize  the  circumstances  of  the 
offence.     So  that  to  say  a  man  was  "  a  traitor,*  or 
a  thief,"  did  not  afford  him  a  ground  of  action,  un- 
less  he   had  sustained   special   damage   from  the 
words.     And  to  such  an  extent  was  the  nicety  car- 
ried, that  even  in  cases  where  the  words   did  state 
some  of  the  circumstances,  it  was  held  to  be  incum- 
bent upon  the  plaintiff  to  prove  that  facts  connected 
with  the  charge  were  partially  true,  in  order  to  ren- 
der it  the  more  probable  that  he  migh  have  been 
placed  in  jeopardy  by  the  accusation.     And  this  af- 
fords reason  to  suppose  that,  originally,  the  only 
ground  of  allowing  such  an  action,  without  proof  of 
special  damage,  was,  the  danger  to  which  the  party 
was  exposed  of  a  criminal  prosecution,  to  which  he 
could  scarcely  have  been  subjected  by  a  bare  gene- 
ral charge,  unsupported  by  any  facts  or  circumstances 
which  might  give  it  colour. 

Thus,  in  the  case  of  Jacob  v.  Mills. f  It  was 
held,  that  for  the  words,  "  He  hath  poisoned  J.  S. 
and  it  shall  cost  me  100/.  but  I  will  hang  him,"  no 

"  Rro.  Action  sur  le  cas.  27  H.  8. 11.  t  Cro.  J.  331.  343. 1  Vent.  117. 


70 

action  was  maintainable,  because  the  plaintiff'  did 
not  aver  (and  of  course  prove)  that  J.  S.  was  dead 
at  the  time  the  words  were  spoken. 

The  defendant  said,  "  Sir  Thomas  Holt  struck 
his  cook  on  the  head  with  a  cleaver,  an*l  cleaved  his 
head  ;  the  one  part  lay  on  the  one  shoulder,  and  ano- 
ther part  on  the  other."  After  verdict  for  the  plain- 
tiff, judgment  was  arrested,  upon  the  ground  that  it 
did  not  appear  that  the  cook  was  killed. 

But  in  other  cases,  both  prior  and  subsequent  to 
the  former,  the  same  objection  was  overruled.  In 
the  case  of  Webb  v.  Poor,*  the  words  were,  "  I  will 
call  him  in  question  for  poisoning  my  aunt,  and  I 
make  no  doubt  to  prove  it."  It  was  moved,  in  ar- 
rest of  judgment,  that  the  plaintiff  had  not  averred 
that  his  aunt  was  poisoned  ;  but  the  court  would  not 
allow  the  objection,  saying,  that  the  plaintiff's  credit 
was  impeached,  whether  she  was  poisoned  or  not. 
And  the  same  point  was  ruled  in  Talbot  v.  Case,f 
where  it  was  said,  that  the  death  of  the  person  al- 
leged to  have  been  murdered  would  be  intended, 
unless  the  contrary  appeared.  Still,  however,  it 
was  held,  that  if  it  appeared  that  the  person  said  to 
have  been  murdered  was  in  fact  living,  no  action 
could  be  maintained.  The  plaintiff;  showed  in  his 
declaration,  that  the  defendant  had  a  wife  yet  living ; 
and  that  he  said  of  the  plaintiff,  "  Thou  hast  killed 
my  wife  ;  thou  art  a  traitor  !"  and  it  was  held  that  no 
action  lay  ;  and  a  distinction  was  taken  between  the 
ease  where  the  person  stated  to  have  been  murdered 
was  still  alive,  and  where  he  was  dead ;  that,  the 


Cro.  Eliz.  509.  t  Cro.  Eliz,  S?:?. 

"  •«•*?.  v.  Gee,  4  Rep.  16.  9.  Cro.  Car.  489. 


71 

wife  being  alive,  no  action  lies,  although  the  defend- 
ant says  that  the  plaintiff  has  murdered  her ;  since  it 
appears  that  no  murder  of  her  can  have  been  com- 
mitted, nor  the  plaintiff  in  any  jeopardy :  and  so 
the  words  are  vain,  and  no  scandal  or  damage  to  the 
plaintiff. 

To  require  the  plaintiff  to  prove,  that  the  party, 
with  whose  murder  he  is  charged,  is  actually  dead, 
would  be  highly  unreasonable  and  inexpedient ; 
since  the  slanderer  might  secure  impunity  by  fixing 
either  upon  a  fictitious  person  as  the  supposed  vic- 
tim of  the  murder,  or  upon  some  real  person  whose 
death  the  plaintiff  might  not  be  able  to  prove. 

In  the  case  of  Snag  v.  Gee  (cited  by  Sir  E.  Coke,* 
in  his  fourth  report,)  it  appeared  upon  the  record, 
that  the  wife,  alleged  to  have  been  murdered,  was 
still  alive ;  and  the  action  was  held  not  to  be  main- 
tainable, because  the  plaintiff  was  not  put  in  jeo- 
pardy  by  the  words. 

It  cannot,  however,  fairly  be  inferred  from  this,  that 
the  plaintiff  is  in  all  cases  precluded  from  recovering;, 
although  the  person  alleged  to  have  been  mur- 
dered should  be  still  alive ;  since  the  plaintiff's 
life  may  have  been  placed  in  jeopardy  in  conse- 
quence of  the  injurious  report,  though,  in  fact,  at 
the  time  of  pleading,  or  upon  the  trial,  the  defend- 
ant may  be  able  to  prove  the  person  alleged  to  have 
been  murdered  to  be  still  living.  The  words,  if  ac- 
tionable without  special  damage,  must  be  so  imme- 
diately when  spoken  ;  and  their  actionable  quality 
must  then  depend  upon  the  fact,  whether  the  hear- 
ers were  aware  that  the  person  alleged  to  be  mur 

*  4  Ren.  16.  9 


n 

dered  was  really  alive  ;  if  they  did  not  know  the 
fact,  then  all  the  consequences  (the  probability  of 
which  renders  a  charge  of  murder  in  any  case  ac- 
tionable) may  follow  ;  since,  unfortunately,  several 
melancholy  instances  may  be  cited  where  an  ac- 
cused person  has  suffered  for  the  supposed  murder 
of  one  who  survived  him. 

Should  it,  however,  precisely  appear,  upon  the 
plaintiff's  own  statement,  that  the  person  charged 
to  have  been  murdered  was  alive  when  the  words 
were  spoken,  perhaps  it  would  be  presumed  that 
the  hearers  knew  that  fact. 

The  plain  tiff*  declared  that  the  defendant  said  of 
him,  "  He  is  a  base  gentleman,  and  had  three  or 
four  children  by  A.  S.  his  maid -servant ;  and  after 
killed  them  or  caused  them  to  be  killed ;  and  then 
averred,  that  he  never  was  guilty  of  any  incontinen- 
cy  with  A.  S.  nor  any  other,  nor  of  any  such  felony 
or  murder.  After  verdict  for  the  plaintiff,  it  was  ob- 
jected, in  arrest  of  judgment,  that  inasmuch  as  he 
had  averred  that  he  never  was  guilty  of  any  inconti- 
nency  with  A.  S.  it  was  all  one  as  if  he  had  averred 
that  he  never  had  any  child  by  A.  S.  and  that  if 
he  had  so  averred,  no  action  would  lie  ;  for  then  it 
would  appear  to  the  court,  that  there  was  no  such 
thing  in  rerum  natura  as  is  supposed  to  have  been 
killed.  But  it  was  adjudged  for  the  plaintiff;  be- 
cause it  was  not  specifically  averred  that  he  had  no 
child  by  A.  S.  but  only  generally,  that  he  was  not 
incontinent  with  her. 

And  the  like  degree  of  particularity  has  been 
required  in  other  cases  where  felony  has  been 
charged. 

*  1  tin.  Ab.  409.  pi.  4.  Popb..  1S7.  Jo.  141.  Lat.  159.  Cart.  55.  Comb.  132. 


Thus,  for  the  words,  "Thou  hast  committed 
burglary  in  breaking  his  house,  and  taking  his 
goods."*  It  was  held,  that  no  action  was  maintain- 
able ;  it  being  uncertain,  as  no  person  was  named, 
whose  house  and  goods  were  meant.  And,  upon 
the  same  principle,  a  general  charge  of  forgeryf 
was  held  not  to  be  actionable,  without  reference  to 
some  particular  deed,  instrument,  or  other  subject 
matter.  (1)  So  it  was  held,  that  a  general  charge 
of  subornation^  of  perjury  was  not  actionable,  un- 
less it  appeared  that  the  perjury  had  been  commit- 
ted. (j2) 

These  doctrines  have,  however,  been  long  ex- 
ploded ;  and  the  rule  seems  to  be  perfectly  esta- 
blished, that  an  action  is  maintainable  for  a  general 
imputation  conveyed  in  apt  terms. 

The  establisment  of  this  rule  necessarily  defeated 
another  nicety,  which  has  been  alluded  to  as  for- 
merly countenanced  by  the  courts,  namely,  that 
when  the  charge  described  any  circumstances  of 
the  offence,  it  was  incumbent  upon  the  plaintiff  to 
show  the  existence  of  such  particulars  as  might 
serve  to  give  colour  to  the  defendant's  imputation, 
since  it  would  be  absurd  to  allow  a  remedy  against 
general  charges  where  no  colour  could  be  shown, 
and  to  deny  it  where  the  imputation  was  equally 
prejudicial,  because  it  contained  particulars,  which 
particulars  the  plaintiff  might  be  equally  unable  to 
prove. 

*  Brown  v.  St.  John.  1  Rol.  Ab.  71. 
3  Leon.  231.  I  G  Mod.  2Q0. 

(1)  See  Harrison  v.  King,  7  Taunt.  431.  S.  C.  4  Price,  46.  But  see  ante,  p 
32,  note  (1). 

12)  Power  v.  Miller,  2  M'Cord's  Rep.  220- 
10 


7^1 

As  for  instance,  it'  for  the  words,  "  you  commit- 
ted a  murder,"  the  plaintiff  be  entitled  to  recover, 
it  would  be  highly  unreasonable  in  an  action  for  the 
words,  "  You  murdered  J.  $."  to  require  him  to 
prove  that  such  a  person  as  J.  S.  had  existed,  but 
was  dead  at  the  time  the  words  were  spoken. 

It  may  next  be  proper  to  refer  to  a  few  cases 
where  general  words  have  been  held  actionable. 

An  action  has  been  held  maintainable  for  the 

words  traitor,*  murderer,!  thief,:}:  sheepstealer||.  (1) 

For  charging    another  with  felony, §   perjury,^! 

subornation  of  perjury,**  forgery, ft  robbery 4+  (2) 

It  was  once  held,  that  to  call  another  a  pick- 
pocket, mi  did  not  amount  to  a  charge  of  felony  ; 
this  decision  has,  however,  been  overruled. §§(3) 

Whilst  the  statutes  against  witchcraft  remained  in 
force,  it  seems  that  the  term  witch  was  not  actionable, 
unless  coupled  with  some  act  of  witchcraft ;  the 
cases,  however,  relating  to  this  offence,  are  so  in- 
consistent with  each  other,   and  with   any  settled 

*  Dal.  17.  Bro.  Ac.  sur  Ie  cas.  pi.  2.  27  H.  8. 14.  t  Mo.  29. 

I  Off.  47.  2  Buls.  134.  |]  3  Buls.  303. 

§  Jo.  32.  Cro.  Car.  27G.  Poph.  210.  Sty.  235. 

1T  Ow.  62.  Noy,  61.  1  Vi'ii.  Ab.  405. 

**  Cro.  Eliz.  308.  Cro.  .!.  158.  1  Rol.  Ab.  41. 

tt  Jones  v.  Heme,  2  Wils.  87,  ;J  Cro.  J.  247. 

|| j|  3  Salk.  325.  §§  11  Mod.  255. 


(1)  Fisher  v.  Rotereau  tt  nx.  2M'Cord's  Rep.  189.  Tracy  v.  Harkins,  1  Binn. 
395,  note.     See  M'JUexandcr  v.  Harris,  6  Muni.  465. 

(2)  Hopkins  v.  Beedle,  1  Caines's  Rep.  347.  Green  v.  Long,  2  Caines,  91. 
Seers  v.  Strong,  Kirby's  Rep.  12.  Howardx.  Stevenson,  2  Rep.  Const.  Ct.  South 
Carolina,  408.  Shock  v.  JWChesney,  2  Yeates,  473. 

(3)  So  in  Pennsylvania  to  call  a  man  "  a  vagrant,"  (Miles  v.  Oldfield,  4  Yeates 
423,)  is  actionable  ;  as  any  vagrant  may  be  committed  to  jail  for  a  term  not 
exceeding  one  month,  to  be  there  kept  at  hard  labour.  Respubl.  v.  Hollowav. 
5  Binn.  516 


75 

principle,  as  to  appear  incapable  of  affording  any 
illustration  of  the  subject  of  this  treatise. 

To  charge  one  with  having  cozened  another,  has 
in  a  great  number  of  cases  been  held  too  indefinite 
to  support  an  action.  For  instance,  the  defendant 
said,  "  Thou  art  a  cozening  knavre,  and  hast  co- 
zened me  out  of  500/."*  and  it  was  held  that  no  ac- 
tion lay. 

So  to  accuse  another  of  cheating  is  too  general 
to  support  an  action.f(l) 

So  to  say,  he  is  a  rogue,  varlet,  or  the  like, (2)  is 
not  actionable. % — So  to  say,  "Thou  art  a  common 
filcher,  a  companion  of  cut- throats,"  &c.|| 

So  to  say,  "  He  is  a  bloodsucker,  and  not  fit  to 
live  in  the  commonwealth  ;  and  his  child,  not  born, 
is  bound  to  curse  him."§ 

2dly.  The  criminal  quality  of  the  act  imputed 
may  appear  from  circumstances  explaining  the 
meaning  of  words  otherwise  doubtful  or  innocent. 

In  consideration  of  law,  that  is  certain  which  can 
be  rendered  so  :  it  is,  therefore,  of  no  importance 
whether  the  terms  used  be  doubtful,  or  apparently 
innocent,  provided  it  can  be  shown  that  they  could 

*  Hutt.  13.  1  Fin.  Ab.  427.  pi,  9.  3  Lev.  171.  Cro.  Eliz.  95.  Ow.  47.  Buls. 
172.  Show.  181.  God.  284.  Cro.  J.  427. 

t  2  Salk.  694.  X  4  Rep.  15.  b.  Ld.  Ray.  1417. 

||  Cro.  Eliz.  554.  §  Noy,  64. 


(1)  Stevenson  v.  Hayden,  2  Mass  Rep.  40S.  In  Pennsylvania  cheating  is  an 
indictable  offence  involving  moral  turpitude,  and  it  would  seem  that  to  accuse 
a  man  of  being  a  cheat,  would  support  an  action  upon  the  same  principle  that 
calling  him  "  a  vagrant"  has  been  held  actionable.  See  2  Smith's  Laws  of 
Pennsylvania,  591.  Resp.  v.  Powell,  1  Dall.  47.  See  also  Marshall  v.  Addison,  4 
Uarr.  and  M'Hen.  537  ;  the  authority  of  which  is  very  doubtful. 

12)  Caldveell  v.  ,qhhe%  HardinV  Rep.  530,  5  Rinn.  210.  2  Conn.  Rep.  5. 


n 

and  did  convey  the  offensive  meaning  which  foritis 
the  ground  of  complaint. 

An  imputation  of  being  forsworn  is  the  mos.t 
common  instance  of  cases  falling  under  this  divi- 
sion, and  has  given  rise  to  a  numerous  class  of  deci- 
sions^!) 

It  has  been  held,  that  to  accuse  another  of  hav- 
ing forsworn  himself,  generally,  is  actionable  ;*  but 
it  seems  now  perfectly  settled,  that  the  term  is  not 
actionable,  unless  it  appear  from  the  accompanying 
circumstnances  to  have  been  meant  and  understood 
of  such  a  forswearing  as  would  constitute  the  offence 
of  perjury. f  (2) 

Thus,  to  say,;  "  A.  B.  being  forsworn,  com- 
pounded the  prosecution,"  is  actionable,  since  an 
indictable  forswearing  must  have  been  intended. 

So  the  term  "  forsworn"  is  actionable  when  refer- 
ence is  made  to  a  court  in  which  false  swearing 
would  amount  to  perjury. || 

The  defendant  said,  "  Arthur  Colome  is  a  for- 
sworn man,  and  hath  taken  a  false  oath  in  his  de- 
position at  Tiverton,  where  he  waged  his  law  against 
me  ;  and  the  plaintiff  had  judgment,  the  forswearing 
^appearing  by  the  description  to  have  amounted  to 
perjury.§ 

*  2  Buls.  40. 

t  4  Rep.  15.  2  Buls.  150.  Holt  v.  Scholefield,  6  T.  R.  G91. 

1  Cro.  Eliz.  609.  2  Rol.  Rep.  410. 

ii  Cro.  Eliz.  720.  1  Vin.  Ab.  40G.  pi.  b.  7. 

$  Cro.  J.  204. 

(1)  In  an  action  for  saying  of  another  "  He  is  perjured,"  it  is  enough  to  prove 
the  words  spoken,  and  that  they  refer  to  the  Plaintiff.  If  it  appear  that  they 
were  spoken  with  reference  to  the  plaintiff's  giving  testimony  in  an  inferior 
court,  it  must  be  intended  to  be  a  court  of  competent  jurisdiction.  The  oivis 
lies  on  the  defendant  to  prove  otherwise.  Green  v.  Long;,  2  Caines's  Rep.  91 
^ee  ante,  p.  47,  n. 

•'•>■»   Crookshanfc  v   Gray  et  v~r.  20  Johns.  Rep.  "■  1 1 


77 

To  say,  "  Thou  wert  forsworn  at  such  a  trial,** 
(with  reference  to  a  trial  where  the  offence  of  per- 
jury might  have  been  committed)  is   actionable. (1) 

Where  reference  is  made  to  a  particular  court, 
the  imputation  is  actionable,  if  perjury  could  have 
been  committed  there.  In  such  case,  however,  it  is 
incumbent  on  the  plaintiff  to  show  that  the  perjury 
could  have  been  committed. (2) 

The  defendant  said,  "Thou  wert  forsworn  at 
Whitchurch  court,"f  and  the  words  were  held  not 
to  be  actionable,  because  it  did  not  appear  that 
Whitchurch  court  was  a  court  of  record. 

So  it  was  held,  that  no  action  lay  for  saying, 
"  He  has  forsworn  himself  in  Leake  court,":}:  with- 
out showing  it  to  be  a  court  which  could  compel  the 
taking  of  an  oath. 

It  is  not  necessary  that  the  forswearing  should 
be  shown  to  have  been  intended  of  a  perjury  within 
the  statute  of  Elizabeth,  since  perjury  is  an  offence 
punishable  at  Common  Law.|j 

So,  although  Ecclesiastical  Courts  are  not  men- 
tioned in  the  statute  of  Elizabeth  against  perjury, 
yet  an  action  lies  for  imputing  a  forswearing  in  an 
Ecclesiastical  Court. — The  defendant  said,  "  Thou 
art  a  forsworn  knave,  and  I  will  prove  thee  to  be 
forsworn  in  the  Spiritual  Court  ;"§  and  it  was  held 
that  the  action  well  lay  ;  for  the  Ecclesiastical  Court 
is  a  judicial  court,  and  well  known.  (3) 

•  Cro.  Car.  37S.  Lut.  1292.  -fCro.  Car.  378. 

X  1  Rol.  Ab.  39.  pi.  7.  6  Bac.  Ab.  207.  ||  1  Rol.  Ab.  49. 

§  Shaw  v.  Thompson,  Cro.  Eliz.  609. 


(1)  See  Fowle  v.  Robbing,  12  Mass.  Rep.  496. 

(2)  See  Chapman  v.  Smith,  13  Johns.   Rep.  80.     JVimi  v.  Munn,  13  Johns. 
Rep.  48. 

3)  So  to  charge  a  man  with  "  perjuring1  himself,"  and  "  being  guilty  of  falsi 


7S 

To  say,  "  Thou  wast  forsworn  before  my  Lord 
Chief  Justice,  in  evidence,"*  is  actionable. 

So  to  say  that  another  is  forsworn  before  a  Jus- 
tice of  the  Peace  is  actionable  ;f  or  before  such  a 
person,  naming  him,  provided  it  can  be  shown  with 
certainty,  that  the  person  so  named  was  a  Justice  of 
thePeace.(i) 

The  defendant  said,  "  Thou  art  a  forsworn 
knave  !"J  The  plaintiff  asked,  "  Where  ?"  The  de- 
fendant replied,  "  In  Ilston  court ;"  and  the  words 
were  held  actionable,  the  court  alluded  to  being  a 
Court  Leet,  where  the  offence  might  have  been 
committed.  (2) 

"  Thou  art  a  forsworn  man ;  I  will  teach  thee 
the  price  of  an  oath,  and  will  set  thee  on  the  pil- 
lory ."||  And  the  words  were  held  actionable,  be- 
cause the  defendant  showed  that  he  meant  to  im- 
pute a  perjury,  for  which  the  plaintiff  ought  to 
stand  in  the  pillory  .(3) 

*  1  Leon.  Rep.  127. 

t  Gurneth  v.  Deny,  3  Lev.  1G6.  4  Co.  17.  t  Cro.  Eliz.  720. 

||  1  Vin.  Ab.  407.  pi.  11. 

wearing,"  before  a  meeting  of  the  members  of  a  Church,  acting  as  an  ecclesi- 
astical tribunal  for  the  administration  of  church  discipline,  has  been  held  ac- 
tionable in  Connecticut.  Three  of  the  judges,  however,  dissented;  and,  to  the 
Editor,  their  reasons,  particularly  those  of  Edmund  J.  seem  conclusive.  Chap- 
man v.  GiUet,  2  Conn.  Rep.  40. 

(1)  But  see  Stafford  v.  Green,  1  Johns.  Rep.  505.  Ward  v.  Clark, 2  John?. 
Rep.  10.  It  has  been  decided  that  to  charge  a  man  with  perjury  before  Arbi- 
trators is  actionable.     Wetmore  v.  Lyman,  2  Conn.  Rep.  42,  note. 

(2)  See  Hamilton  v.  Dent,  1  Hayw.  Rep.  116. 

(3)  So  where  one  said  of  another,"  You  swore  to  a  Iie,/or  which  you  now  stand 
indicted,"  the  words  were  held  actionable.  Pe'ton  v.  Ward,  3  Caines's  Rep.  73. 
See  also  Gilbert  v.  RodJe,  3  Bulstr.  304.  So,  to  say  to  a  witness,  while  he  is 
giving  his  testimony  in  court,  to  a  point  material  to  the  issue,  "  that  is  false," 
is  aitionable,  Tor  when  spoken  maliciously,  the  words  amount  to  a  charge  of 
perjury.  M'Claury  v.  Wetmore,  6  Johns.  Rep.  82.  Kean  v.  M'LaugNfa  8 
sr-ro-.  and  Rawle,  469. 

I 


79 

The  injurious  import  of  the  term  stealing,  has 
undergone  much  discussion. 

In  Baker  v.  Pierce.*  The  words  were,  "  You 
stole  my  boxwood,  and  I  will  prove  it."  Upon 
motion  in  arrest  of  judgment,  a  long  string  of  cases 
was  cited  for  the  defendant,  in  which  the  term  steal- 
ing had  not  been  considered  as  actionable ;  as 
where  the  defendant  said,  "  You  are  a  thief,  and 
stole  my  timber."t  "  You  are  a  thief,  and  stole 
my  corn,  hops,  and  apples.":}:  "  You  stole  timber 
out  of  my  yard."||  "  You  stole  corn  out  of  my 
yard."§ 

All  of  which  were  decided  upon  the  ground,  that 
unless  the  additional  words  show  that  a  charge  of 
felony  was  intended,  they  are  to  be  taken  in  their 
mildest  acceptation. 

For  the  plaintiff,  it  was  contended,  that,  "  You 
have  stolen  my  timber"  is  actionable ;  for  it  must 
be  felled  and  severed  from  the  stock,  before  it  is 
timber,  according  to  the  distinction  made  in  the  old 
Hexameter — 

"  Arbor  dum  crescit,  lignum  dum  crescere  nescit."1T 

Holt  C.J.  said,  "The  opinions  of  later  times 
have  been  in  many  instances  different  from  those  of 
former  days  in  relation  to  words  ;  for  formerly  there 
has  been  a  difference  taken  between  saying,  "  Thou 
art  a  thief,  and  hast  stolen  my  wood  ;"  and,  "  Thou 
art  a  thief,  for  thou  hast  stolen  my  wood."  And 
judgments  have  gone  both  ways;  but  later  opinions 
make  no  difference  if  the  words  be  spoken  at  the 
same   time,  and  these  are  scrambling  things  thai 

*  6  Mod.  23.  t  Cro.  J.  65.  J  2  Brownl.  280. 

i|  Cro.  J.  673.  All.  31.  Hob.  331.  Sty.  231. 
;  Hob.  406.  *  1  Roll.  Ab.  70.  pi.  47 


so 

have  gone  backward  and  forwards,  and  the  idle 
people  in  the  country,  that  privately  cut  and  carry 
away  coppice  wood,  are  in  common  parlance  called 
woodstealers."  And  he  said,  that,  "  Stealing,  and 
feloniously  stealing,  are  not  the  same ;  for  in  com- 
mon parlance,  stealing  does  not  always  import 
*  felony ;'  as,  to  cut  and  carry  away  furze  is  a  steal- 
ing, but  not  a  felonious  stealing." 

But  Powell  J.  said,  he  always  took  it,  that  steal- 
ing, ex  vi  termi?ii,  did  import  felony.  And  after- 
ward, by  the  opinion  of  the  >vhole  court,  the  plain- 
tiff had  judgment  on  the  ground,  as  stated  in  the  re- 
port, of  all  the  later  authorities.*  (1) 

From  this,  and  the  later  decisions  upon  this  sub- 
ject, it  seems,  that  the  term  stealing  takes  its  com- 
plexion from  the  subject  matter  to  which  it  is  ap- 
plied, and  will  be  considered  as  intended  of  a  felo- 
nious stealing,  if  a  felony  could  have  been  commit- 
ted of  such  subject  matter. 

In  modern  construction  and  practice  little  doubt 
can  arise  upon  these  niceties,  which  appear  in  for- 
mer times,  to  have  afforded  abundant  occupation  to 

*  C  Mod.  23. 


(1)  Stokes  v.  Stackey,  1  M'Cord's  Rep.  562.  In  an  action  of  slander  the 
words  charged  were,  "  You  arc  a  thief,"  "  You  are  a  damned  thief."  The 
words  as  proved  were  :  "  you  are  a  thief,  you  stole  hoop-poles  and  saw-logs  from 
off  Delancy's  and. Judge  Myers's  Lands."  The  Judge  (Fan  Ness)  before  whom 
the  cause  wa3  tried  left  it  to  the  Jury  to  decide,  whether  by  the  words  proved 
the  defendant  meant  to  charge  the  plaintiff  with  taking  timber  or  hoop-poles 
already  cut  down,  in  which  case  it  would  be  a  charge  of  felony  ;  or  whether 
they  were  meant  to  charge  the  plaintiff  with  cutting  down  and  carrying  away 
timber  to  make  hoop-poles  ;  in  which  case  it  would  amount  only  to  a  trespass, 
and  the  words  would  not  then  be  actionable,  and  the  Jury  having  found  a  ver- 
dict for  the  defendant,  the  Court  refused  to  set  it  aside,  Spencer  C  J.  dissent- 
ing. Dexter  v.  Taber,  12  Johns.  Rep.  239.  See  also  Tempest  v.  Chambers,  1 
Starkie's  Rep.  67.  It  is  not  actionable  to  say  of  a  man,  "  that  he  stole  a  dog," 
n&  a  dog  is  not  the  subject  of  felony.     Findley  v.  Bear,  8  Serg.  and  Rawle,  571. 


SI 

the  courts.  If,  from  the  plaintiff's  declarator} 
statement  of  his  case,  it  appear,  that  the  charge  of 
stealing  could  not,  from  its  application,  have  been 
meant  to  impute  a  felonious  stealing :  as  if,  for  ex- 
ample, the  defendant  had  said,  "  You  stole  an  acre 
of  my  land;"  the  statement  would  be  held  bad  up- 
on demurrer ;  if  it  appeared  upon  the  trial  that  the 
term  had  been  applied  in  a  sense  not  felonious,  the 
plaintiff  would  be  nonsuited  ;  and,  finally,  if  after 
verdict  for  the  plaintiff  it  appeared  that  the  term  as 
used  was  capable  of  a  felonious  sense,  the  verdict 
would  besupported.(l) 

This  doctrine  is  applicable  to  every  other  case 
where  doubtful  words,  or  even  those  apparently  in- 
nocent, derive  a  criminal  quality,  either  from  con- 
text or  collateral  circumstances. 

The  defendant  said,  "  Thou  art  a  clipper  and 
shalt  be  hanged  for  it  ;"*  and  the  court,  after  a  ver- 
dict for  the  plaintiff,  said,  that  the  words  should  not 
be  taken  to  mean  a  clipping  of  clothes,  but  a  clip- 
ping of  money,  for  which  the  plaintiff  might  be 
hanged. 

So  for  the  words,  "  Thou  art  a  clipper  and  thy 
neck  shall  pay  for  it,"f  an  action  was  held  maintain- 
able ;  for  by  the  subsequent  words  it  could  not  be 
intended  of  any  other  clipping  than  of  money. 

So  when  the  statutes  against  witchcraft  were  in, 

*  Walter  v.  Beaver,  3  Lev.  1GG.  2  Jo.  235.  Cro.  J.  255,  276.  1  lev.  155. 
t  3  Lev.  166. 


(1)  Where  words,  otherwise  actionable,  were  at  the  time  by  a  reference  to, 
a  known  transaction,  they  arc  to  be  construed  accordingly  ;  and  heina;  so  ex- 
plained, they  were  held  not  to  be  actionable.  Van  Rensselaer  v«  Dole,  I  Johns. 
£a.  239.  S.  P.  E<He  v.  Brook*,  Sup.  Ct.  Pcnn.  Mav,  1814,  MS. 

11 


force,  the  defendant  said,  "  Thou  art  a  witch,  and 
I  will  make  thee  suffer  for  a  witch."*  After  verdict 
for  the  plaintiff  it  was  contended,  that  the  words 
were  not  actionable ;  that  it  had  been  many  times 
adjudged,  that  witch  alone  is  not  actionable ;  and 
that,  "  I  will  make  thee  suffer  for  a  ivitch"  are  not ; 
for  it  is  not  said  suffer  death ;  that  it  might  be  in- 
tended of  a  citation  in  the  Spiritual  Court,  which 
was  the  usual  way  before  the  statute  ;  or  it  might 
be  by  ducking  in  the  water  as  the  common  people 
used  to  try  those  suspected  of  witchcraft.  But  it 
was  answered  by  Rokesby  and  Neville  Justices, 
that  the  words  shall  be  taken  as  they  are  usually  un- 
derstood among  neighbours  in  the  country  ;  to  suf- 
fer is  intended  to  suffer  death ;  as  they  usually  say, 
How  many  suffer  at  this  Assizes?  which  is  intended 
suffer  death.  And  thereto  Treby  C.  J.  after  it  had 
been  twice  moved,  inclined.  And  at  last  judgment 
was  given  for  the  plaintiff  by  Treby  C.  J.,  and  Ro- 
kesby and  Neville  Js. ;  Powell  J.  being  of  a  contra- 
ry opinion,  because  words  shall  be  taken  in  mitiori 
sensu,  and  the  word  suffer  is  wholly  uncertain  what 
manner  of  suffering  was  intended. 

The  defendant,!  speaking  of  the  death  of  one 
Daniel  Dolly,  said  to  the  plaintiff,  "  You  are  a  bad 
man,  and  I  am  thoroughly  convinced  that  you  are 
guilty  ;  and  rather  than  you  should  want  a  hangman, 
I  would  be  your  executioner."  After  verdict  and 
judgment  for  the  plaintiff,  the  defendant  brought  a 
writ  of  error  in  the  court  of  King's  Bench,  assigning, 
as  two  grounds  of  error — 

'  3  Lev,  304.  +  Peako  v,  Oldham,  Cowp.  27"» 


S3 

1st.  That  the  words  were  not  in  themselves  scan- 
dalous. 

2dly.  That  they  did  not  become  so  by  reference 
to  the  death  of  D.  D. 

Lord  Mansfield  in  affirming  the  judgment,  ob- 
served, "  It  is  argued  that  there  are  many  innocent 
ways  by  which  one  man  may  occasion  the  death  of 
another  ;  therefore,  the  words,  *  guilty  of  the  death,' 
do  not  in  themselves  necessarily  import  a  charge  of 
murder ;  and  consequently,  as  no  particular  act  is 
charged  (which  in  itself  amounts  to  an  imputation 
of  a  crime)  the  words  are  defectively  laid.  What ! 
when  the  defendant  tells  the  plaintiff  that  he  has 
been  guilty  of  the  death  of  a  person,  is  not  that  a 
charge  and  imputation  of  a  very  foul  and  heinous 
kind  ?  Saying  that  such  a  one  is  the  cause  of  ano- 
ther's death,  as  in  the  case  in  2Buls.  10,  11.  is  very 
different ;  because  a  physician  may  be  the  cause  of 
a  man's  death,  and  very  innocently  :  but  the  word 
guilty  implies  a  malicious  intent,  and  can  be  applied 
only  to  something  which  is  universally  allowed  to 
be  a  crime.  But  the  defendant  does  not  rest  here  : 
on  the  contrary,  in  order  to  explain  his  meaning,  he 
goes  on  and  says,  *  and  rather  than  you  should  be 
without  a  hangman,  I  will  hang  you.'  These 
words  plainly  show  what  species  of  death  the  de- 
fendant meant,  and  therefore  in  themselves  mani- 
festly import  a  charge  of  murder." 

Where  the  words  merely  charge  the  plaintiff  with 
being  deserving  of  punishment^  great  doubt  seems 
to  have  been  entertained  whether  they  are  action- 
able, and  there  are  many  authorities  both  ways. 

it  has  been  held,  that  an  action  lies  for  saying, 


84 

"  If  you  had  your  deserts,  you  had  been  hanged 
before  now."*  For  the  court  said,  it  should  be  in- 
tended to  convey  an  imputation  of  an  offence  for 
which  the  penalty  of  death  was  due. 

So  the  words,  "  He  hath  deserved  to  have  his 
ears  nailed  to  the  pillory ,"f  were  adjudged  action- 
able. But  for  the  words,  "  Thou  art  a  scurvy  bad 
fellow,  and  hast  done  that  for  which  thou  deservest 
to  be  hanged, "J  it  was  held,  that  no  action  could 
be  maintained.  So  the  words,  "Thou  shouldst 
have  sate  on  the  pillory,  if  thou  hadst  thy  deserts,"|j 
have  been  held  not  actionable,  because  too  general. 

Since  a  greater  degree  of  precision  has  been  re- 
quired in  modern  times  than  formerly,  the  cases 
last  cited  may,  perhaps,  be  considered  as  the  better 
authorities. 

If,  however,  the  words  import  a  conviction  for 
some  offence,  it  seems  they  are  actionable. 

The  defendant  said,  "  You  are  a  branded  rogue, 
and  have  held  up  your  hand  at  the  bar."§  It  was 
held,  that  the  words  were  actionable,  since  they 
imply  that  the  plaintiff  was  branded  according  to 
the  statute.^ 

So  words  or  signs  apparent!}'  innocent,  or  unin- 
telligible, may,  by  explanatory  circumstances,  be- 
come actionable.  The  defendant  said  of  the  plain- 
tiff, "  He  is  a  healer  of  felons  ;"**  and  the  words 
having  been  spoken  in  one  of  the  western  counties, 
wherein  <(  a  healer  of  felons"  signifies  a  concealer 

*  Cro.  Eliz.  62.  t  Cro.  EHz.  384.        |1  Vin.  Ab.  415.  pi.  5. 

U  1  Vin.  Ab.  415.  \>\.  JO.  Mo.  243. 
§  All.  35.  IT  1  ja.  c.  7. 

**  Hob.  126.  Cro.  Eliz.  250.  Cart.  214. 


U!> 


of  felons,  were,  thus  explained,  considered  action- 
able.(l) 

So  the  words,  "  He  is  mainsworn,"*  were  held 
actionable,  as  published  in  a  part  of  the  kingdom 
where  they  were  understood  to  convey  a  charge  of 
perjury. 

So,  generally,  in  regard  to  words  spoken  in  a 
foreign  language,  the  only  question  is,  whether 
they  were  understood  by  the  hearers  in  an  action- 
able sense? — If  so  understood,  the  mischief  is  ef- 
fected, and  the  cause  of  action  complete.! 

Where  the  words  are  spoken  in  the  Welch  lan- 
guage, but  in  an  English  county,  it  must  appear 
that  the  hearers  understood  Welch  ;  for  otherwise 
the  court  will  not  intend  that  any  there  understood 
the  Welch  tongue  ;  and  then  it  was  not  any  slander 
any  more  than  if  any  one  spoke  slanderous  words 
in  French  or  Italian,  in  which  case  no  action  will  lie, 
unless  it  be  averred,  that  some  one  there  under- 
stood those  languages.^ 

And  as  doubtful  or  apparently  innocent  words 
may,  by  circumstances,  be  shown  to  be  actionable  ; 
so  may  words  apparently  actionable  be  explained, 
by  circumstances,  to  have  been  intended  and  un- 
derstood in  an  innocent  sense.  Thus,  though  the 
defendant  should  say  "  Thou  art  a  murtherer,"  the 
words  would  not  be  actionable,  if  the  defendant 
could  make  it  appear  that  he  was  conversing  with 
the  plaintiff  concerning  unlawful  hunting,  when 
the  plaintiff  confessed  that  he  killed  several  hares 

*  Hob.  126.  t  1  Roll.  Ab.  74.  Cro.  Eliz.  406. 

I  Cro.  Eliz.  865. 

(1)  See  Broicn  v.  Lamberton,  2  Binn.  34. 


with  certain  engines,  upon  which  the  defendant 
said,  "  Thou  art  a  murtherer,"  meaning  a  murtherer 
of  the  hares  so  killed.*(l) 

Formerly  a  distinction  was  taken  between  say- 
ing, "  Thou  art  a  thief,  for  thou  hast  stolen  such 
a  thing,"  as  a  tree,  the  taking  of  which  could  not 
be  felonious,  and  the  saying,  "  Thou  art  a  thief, 
and  hast  stolen  such  a  thing  ;"  since  in  the  former 
case  the  subsequent  words  show  the  reason  of  call- 
ing the  plaintiff'  a  thief,  and  that  no  felonious  impu- 
tation was  meant ;  but  in  the  latter,  the  action 
lies  for  calling  him  a  thief,  and  the  addition,  "  thou 
hast  stolen,"  is  another  distinct  sentence  by  itself; 
and  not  the  reason  of  the  former  speech,  nor  any 
diminution  thereof,  f 

Little  stress,  however,  would  probably  be  now 
laid  upon  this  distinction,  since,  in  common  dis- 
course, and  is  frequently  intended  to  mean  for. 

And  even  in  the  construction  of  legal  instruments, 
instances  are  not  unfrequent,  where  the  vulgar  and 
obvious  acceptation  of  the  word  has  been  preferred 
to  its  strict  grammatical  signification.  % 

Brittridge  brought  an  action  for  these  words,  "  Mr. 
Brittridge  is  a  perjured  old  knave,  and  that  is  to  be 
proved  by  a  stake  parting  the  land  of  H.  Martin 
and  Mr.  Wright."  And  upon  motion  in  arrest  of 
judgment,  it  was  held,  that  although  the  words, 
"  thou  art  a  perjured  knave,"  without  any  more, 
would  have  been  actionable ;  yet,  that  upon  all  the 

*  4  Co.  13. 

t  Cro.   J.  114.  B.L.N.  P.   5.  Hob.  Rep.    106.  Cro.  Eliz.  857.   Hob.   77. 
Brownl.  2.  God.  b.   241.  Hard.  7.  AH.  31.  Sty.  CC. 
X  6  East.  486.  Mo.  422.  1  Wils.  140. 


(1)  Van  Rensselaer  v.  Dole,  1  Johns.  Ca.  379. 


87 

words  taken  together,  no  action  lay,  for  the  latter 
words  extenuate  the  former,  and  explain  his  intent, 
that  he  did  not  mean  any  judicial  perjury;  and 
therefore  it  was  adjudged  that  the  words  were  not 
actionable.  But  it  was  said,  that  if  the  plaintiff's 
counsel  had  disclosed  the  truth  of  the  case  in  the 
declaration,  the  words  would  have  maintained  the 
action  ;  for  the  truth  of  the  case  was,  that  in  an  ac- 
tion between  Martin  and  Wright,  the  state  of  the 
controversy  was,  whether  the  stake  stood  upon  the 
land  of  the  one  or  the  other,  or  indifferently  as  a 
boundary  between  their  lands.  And  in  that  action 
the  plaintiff  was  sworn  as  a  witness  ;  and,  by  the 
pretence  of  the  plaintiff,  had  perjured  himself.  But 
this  special  matter  was  not  disclosed,  and  therefore 
it  was  decided  for  the  defendant.* 

Sir  Edward  Coke  in  his  fourth  report  observes, 
that,  "  In  case  of  slander  by  words,  the  sense  of 
the  words  ought  to  be  taken,  and  the  sense  of  them 
appears  by  the  cause  and  occasion  of  speaking  of 
them  ;  for,  "  Sensus  verborum  ex  causa  dicendi  ac- 
cipiendus  est" 

And  again,  "  God  forbid  that  a  man's  words  should 
be,  by  strict  and  grammatical  construction,  taken 
by  parcels  against  the  manifest  intent  of  the  party, 
upon  consideration  of  all  the  words  which  import 
the  true  cause  and  occasion,  which  manifest  the  true 
sense  of  them."  This  rule  is  so  clear,  and  so  well 
established,  that  any  further  illustration  of  it  would 
be  nugatory ;  and  the  questions  which  may  arise, 
upon  which  party  shall  the  onus  of  proving,  or  dis- 
proving the  injurious  intention  and  meaning  be  im- 

*  4  Co.  18.  Yel.  10.  34.  2  Rol.  Ab.  343.  Mo.  66G. 


tt 


88 

posed?  and  how  shall  th  e  defendant  best  avail  him- 
self of  explanatory  circumstances  in  his  favour? 
will  be  afterward  considered  under  more  appro- 
priate divisions. 

3dly.  From  the  mere  description  of  the  circum- 
stances constituting  the  offence. 

In  the  older  cases,  much  difficulty  prevailed  with 
respect  to  the  actionable  quality  of  words  containing 
a  mere  enumeration  of  circumstances  :  it  was  doubt- 
ed, in  the  first  place,  whether  the  circumstances, 
supposing  them  to  be  true,  constituted  an  indictable 
misdemeanor  ?  in  the  second,  whether  the  imputing 
such  a  misdemeanor  was  a  sufficient  ground  of 
action  ? 

The  affirmative  of  the  latter  question  has  already 
been  attempted  to  be  shown.  With  respect  to  the 
first  point,  it  may  be  proper  to  advance  a  few  obser- 
vations. 

In  considering  the  class  of  cases  referrible  to  this 
head,  where  offences  have  been  charged  not  amount- 
ing to,  but  connected  with,  felony,  it  will  be  conve- 
nient to  distribute  them  into  imputations  charging, 

An  attempt  to  commit  a  crime. 

A  solicitation  to  commit  a  crime. 

Some  preparation  made  in  contemplation  of  the 
commission  of  a  crime. 

As  to  words  charging  an  attempt  to  commit  a 
crime. 

In  the  case  of  Sir  Harbert  Croft  v.  Brown.* 
Coke  C.  J.  observed,  that,  in  ancient  time,  "volun- 
tas reputabatur  pro  facto  ;"  and  that  if  a  person  lay 
in  wait  to   kill   another,  and  upon  his   resisting, 

*  3  Bute.  167. 


S9 

wounded  but  did  not  kill  him,  it  amounted  to  a 
felony  at  Common  Law,  and  the  offender  was  oust- 
ed of  his  clergy  ;  that  the  intention,  manifested  by 
an  overt  act,  constituted  a  felony. 

The  learned  judge  then  proceeded  to  intimate, 
that  any  words  charging  an  overt  act  done  in  pursu- 
ance of  a  felonious  intention,  would  be  actionable. 
But  that  in  the  principal  case,  the  words,  "  He 
keepeth  men  to  rob  me,"  were  not  actionable,  since 
they  did  not  charge  any  waylaying  or  overt  act 
done. 

The  words,  "  He  sought  to  murder  me,  and  I 
can  prove  it,*'*  were  held  actionable. 

In  this  case  it  may  be  observed,  the  words  import- 
ed more  than  a  mere  inclination  to  murder ;  since 
the  term  sought  is  shown  by  the  latter  words  to  re- 
fer to  some  overt  act  capable  of  proof. 

But  for  the  words,  "  Thou  wouldest  have  killed 
me,"f  it  was  held  that  no  action  lay,  since  intention 
only  was  charged. 

In  Muney's  case.t  Coke  C.  J.  and  Houghton  J. 
held  the  words,  "  Thou  art  a  knave,  and  hast  laid 
in  wait  to  kill  me  ;  and  thou  hast  hired  one  W.  to 
kill  me,"  not  actionable,  because  no  act  was  laid  to 
be  done,  but  an  intention  only  ;  and  that  a  mere  in- 
tent is  not  punishable. 

It  is  remarkable,  that  the  lying  in  wait,  and  hiring 
an  assassin  to  murder  another,  should  be  considered 
as  nothing  more  than  mere  intention  ;  and  this  deci- 
sion seems  very  inconsistent  with  the  subsequent 
doctrine  of  Lord  Coke  in  Sir  Harbert  Croft's  case  ;|| 

*  Cro.  Eliz.  308, 

t  Dr.  Poe's  case,  vid,  2  Buls.  206.  1  Vin.  Ab.  440.  pi.  9. 
2  Buls.  206.  |!  3  BuK  167. 

12 


W) 


notwithstanding  therefore,  this  and  some  other  con 
tradictory  authorities,  it  may  be  collected  from  a 
general  view  of  the  cases,  that  the  charging  any  at- 
tempt to  commit  a  felony  is  actionable,  since  such  an 
attempt  constitutes  an  indictable  offence.* 

Where  the  words  charge  a  solicitation  to  commit 


a  crime. 


The  defendant  said,  "Mrs.  Margaret  Passie  sent 
a  letter  to  my  Mr.  and  therein  willed  him  to  poison 
his  wife."  After  judgment  for  the  plaintiff,  it  was 
assigned  for  error,  that  the  words  were  not  action- 
able ;  because  they  did  not  charge  any  act  done ; 
and  that  it  was  not  like  charging  the  plaintiff  with 
lying  in  wait  to  commit  a  murder  ;  but  all  the  jus- 
tices and  barons,  besides  Kingsmill,  held,  that  the 
action  lay.f 

The  defendant  said,  "Tibbot  and  one  Gough 
agreed  to  have  hired  a  man  to  kill  me."j  And 
judgment  was  given  for  the  plaintiff  by  Wray  C.  J. 
and  Fenner  J.  against  the  opinion  of  Gawdy. 

The  defendant  said,  "  You  set  on  folks  to  murder 
J.  S."H  And  Wylde  J.  conceived  the  words  to  be 
actionable,  since  tiie  offence  was  indictable. 

The  defendant  said,  "  John  Leversage  would  have 
robbed  the  house  of  J.  S.  if  J.  D.  would  have  con- 
sented unto  it.  He  persuaded  J.  D.  unto  it,  and 
told  him  he  would  bring  him  where  he  should  have 
money  enough."§  And  although  it  was  objected  in 
arrest  of  judgment,  that  the  plaintiff  could  receive 
no  prejudice  from  the  words,  which  did  not  impute 
any  act  done,  the  plaintiff  had  judgment. 

*  2  East,  0.  f  Cro.  Eliz.  7 17.  cited  by  Williams  J.  Bui*  201 . 

J  Cro.  Eli/..  li  West  and  Thilips,  Keb.  25°-. 

6  Cro.  E.  8*8. 


9i 

The  defendant  said,  "  He  bade  J.  S.  to  steal  what 
goods  he  could,  and  he  would  receive  them."*  And 
it  was  held,  on  motion  in  arrest  of  judgment,  that 
the  words  were  not  actionable,  since  they  merely 
charged  the  giving  bad  advice,  and  no  act  done. 

But  in  Lady  Cockaine's  case.f  A  charge  of  hav- 
ing solicited  another  to  commit  a  felony,  was  held 
actionable.  And  in  Sir  Harbert  Croft's  caset  it 
was  held,  that  to  say,  "  A.  did  hire  a  man  to  rob 
me,"  would  be  actionable. 

Where  the  words  charge  some  preparation  made 
in  contemplation  of  the  commission  of  a  crime. 

When  a  man  does  an  act  in  itself  indifferent,  but 
in  contemplation  of  the  commission  of  a  crime  in 
future  (since  the  act  is  not  indictable,)  an  imputation 
of  it  can  scarcely  be  considered  as  actionable. — As 
if,  for  instance,  a  person  were  to  purchase  a  pistol 
with  the  intent  to  commit  murder  at  a  future  oppor- 
tunity, the  act  would  not,  in  law,  amount  to  an  in- 
dictable offence,  though  it  might  be  a  good  ground 
for  binding  the  party  to  his  good  behaviour.  It  is 
to  be  observed,  however,  that  in  Lady  Cockaine's 
case, ||  the  words  charging  her  with  having  solicited 
a  pregnant  woman  to  kill  her  child,  were  held  ac- 
tionable ;  because,  if  true,  there  was  cause  to  bind 
her  to  her  good  behaviour.  The  words,  however,  in 
that  case,  were  clearly  actionable  upon  another 
ground,  and  the  reason  given  is  insufficient,  since  it 
appears,  from  a  variety  of  decisions,  that  many  im- 
putations for  which,  if  true,  the  party  might  be 
bound  to  his  good  behaviour,  are  not  actionable. 

The  defendant  said,  "  He  keepeth  men  to  rob 

•  2  Jo.  157.  f  Cro-  E.  tr>.  I  3  Bills.  t67.  II  Cro,  E.  49, 


inc."*  And  it  was  held,  that  the  words  were  not 
actionable. 

After  some  conversation  about  robbing  a  house, 
the  defendant  said,  "  It  was  T.  M.  (the  plaintiff) 
and  J.  D.  that  were  about  to  rob  E.  C.'s  house."} 
After  a  verdict  for  the  plaintiff,  it  was  adjudged  by 
Archer  and  Vaughan  Js.  for  the  defendant.  And  it 
was  said,  that  the  going  with  the  Intent  to  lie  in  wait 
to  kill  a  man  was  not  indictable  ;  but  that  the  lying 
in  wait  with  the  same  intent  was  indictable. 

Upon  the  whole  it  seems,  that  where  the  words 
merely  impute  an  act  done  in  contemplation  of  the 
future  commission  of  a  crime,  they  are  not  indicta- 
ble ;  unless  it  appear  that  the  defendant  intended  to 
charge  the  plaintiff  with  having  solicited,  or  con- 
spired with,  others  for  the  purpose  of  committing 
the  crime. 

Where  the  description  of  the  circumstances  is 
precise,  little  doubt  can  arise.  The  defendant  said, 
"  You  have  caused  this  boy  to  perjure  himself.''^ 
And  the  words  were  held  actionable,  since  the  facts 
charged  constitute  the  offence  of  subornation  of 
perjury. 

So  where  the  defendant  said,  "You  have  bought 
a  roan  stolen  horse,  knowing  him  to  be  stolen."|| 

The  defendant  said,  "  He  came  to  my  door  and 
set  a  pistol  to  my  breast,  and  demanded  money  of 
me  ;  and  I,  for  safeguard  of  my  life,  gave  him  what 
money  he  desired."§  Roll.  C.  J.  observed,  If  the 
words  sound  to  charge  him  with  felony,  the  action 


*3Bu!s.  167.  tFreem.  46. 

I  Brown!.  2.  ||  Briggs's  case,  God.  157. 

^  Neve  v.  Cross,  Sty.  350. 


m 

will  lie ;  and  three  of  the  Justices  decided  for  the 
plaintiff. 

The  defendant  said  of  a  justice  of  the  peace  and 
deputy  lieutenant  of  the  county  of  Warwick,  "  I 
have  heard  that  a  maid  of  J.  K.'s  should  report,  that 
he  being  sick  and  she  looking  through  a  hole  of  the 
door  where  he  then  lay,  saw  a  priest  (innuendo—a 
popish  priest)  give  the  eucharist  and  extreme  unction 
to  Sir  J.  K."     It  was  moved  in  arrest  of  judgment, 
that  these  words  did  not  amount  to  calling  him  a 
papist ;  since  it  did  not  appear  that  the  priest  was 
a  popish  priest,  unless  by  an  innuendo.    But  it  was, 
after  two  arguments,  resolved,  that  the  words  taken 
altogether  were  actionable,  and  explained  one  ano- 
ther ;  that  a  priest  who  gives  the  extreme  unction, 
must  be  a  popish  priest,  and  he  that  receives  it  a 
papist ;  and  the  judgment  given  for  the  plaintiff  in 
the  Common  Pleas,  was  afterward  affirmed  in  the 
King's  Bench.* 

The  defendant  said,  "  Thou  didst  violently,!  up- 
on the  highway,  take  my  purse  from  me,  and  four 
shillings  and  two-pence  in  it ;  and  didst  threaten 
me  to  cut  me  off  in  the  midst,  but  I  was  forced  to 
run  away  to  save  my  life."  And  the  words,  which 
in  fact  amount  to  a  description  of  a  highway  rob- 
bery, were  held  actionable. 

III.  That  the  criminal  act  was  meant  to  be  im- 
puted to  the  plaintiff. 

The  application  of  the  injurious  charge  to  the 
plaintiff  may  be  collected,  generally,  from  any  cir- 
cumstances indicating  the  intention  of  the  defend- 
ant, so  to  apply  his  words,  and  inducing  the  hearers 
to  suppose  that  the  plaintiff  was  the  person  meant, 

*  Sir  John  Knightly  v.  Marrow,  3  Lev.  68. 
Lawrence  v.  Woodward,  Cro.  Car.  177. 


94 

Thus,  if  the  defendant  should  say,  "I  know 
what  I  am,  and  I  know  what  the  plaintiff  is  ;  I  never 
did  such  an  act,"*  (specifying  some  criminal  act,)  the 
words  would  be  actionable,  provided  the  hearers 
understood  the  offence  to  have  been  imputed  to  the 
plaintiff  by  such  words. 

Where  a  charge  has  been  imputed  to  one  of 
several,  without  specifying  him,  it  has  been  held  in 
many  of  the  older  cases,  that  no  "action  was  main- 
tainable by  any  of  them.  The  defendant  said  to 
three  men  who  had  given  evidence  against  him, 
"  One  of  you  is  perjured."!  And  upon  an  action 
brought  by  one  of  them,  it  was  adjudged,  that  no 
action  lay. 

And  so  it  has  been  held,  that  for  the  words, 
"  One  of  my  brothers  is  perjured."  Although  one 
of  the  brothers  should  bring  an  action,  and  aver 
that  the  words  were  spoken  concerning  him,  yet, 
that  on  account  of  the  apparent  uncertainty,  no  ac* 
tion  would  be  maintainable.|(l) 

But  it  has  since  been  held,  that  for  the  words, 
"  A.  or  B.  murdered  C."||  either  A.  or  B.  might 
bring  an  action. 

If  from  the  plaintiff's  statement  it  appear,  that 
he  could  have  been  meant,  the  finding  of  the  jury 

*  2  Lev.  150.  Snell  v.  Webling,  1  Vent.  276.  t  Cro.  Eliz.  497. 

J  Per  Tanfield  J.  in  Wiseman  v.  Wiseman,  Cro.  J.  107. 
il  10  Mod.  196.  Cart.  56. 

(1)  Where  the  declaration  stated  a  colloquium  with  G.  of  and  concerning  the 
rhildren  of  G.  and  of  and  concerning  C  one  of  the  children  of  G.  and  the 
plaintiff  in  the  action,  in  particular,  and  that  the  defendant  said,  "  Your  chil~ 
•hen  are  thieves,  and  I  can  prove  it,"  the  colloquium  conclusively  points  the  words 
and  designates  the  plaintiff  as  one  of  the  children  intended.     Gidney  v.  Blvkt, 

I  -Johns.  Hep.  5  4. 


Ho 


for  him  wiil  be  conclusive  as  to  the  defendant's  ap- 
plication of  the  charge  to  him,  since  otherwise  thev 
could  not  have  given  him  damages. 

The  application  may  be  ascertained  by  a  variety  / 
of  circumstances ;  as   from  his   having  been*   the  ^ 
subject  of  previous!  conversation,  or  from  his  being    u 
described  by  name. 

The  plaintiff  w  as  a  justice  of  the  peace,  and  Re- 
ceiver of  the  Court  of  Wards,  and  by  reason  thereof 
received  great  sums  of  money  for  the  king,  and  was 
used  with  much  confidence  by  the  king ;  and  the 
defendant,  speaking  concerning  him  with  one  Tho- 
mas Whorewood,  spoke  these  words,  "Mr.  De- 
ceiver hath  deceived  the  king."}  After  a  verdict  for 
the  plaintiff  the  court,  on  motion  in  arrest  of  judg- 
ment, held,  that  the  action  well  lay  ;  that  the  words 
"  Mr.  Deceiver,"  were  an  ironical  allusion  and  nick- 
name to  his  office  and  place  ;  and  that  if  such  crafty 
evasions  should  be  admitted,  it  would  be  a  usual 
practice  to  slander  sans  punishment. 

If  A.  B.  say  to  C.  D.  before  whomE.  F.  is  walk- 
ing, "  He  that  goeth  before  thee  is  perjured,"||  an  - 
action  lies,  if  it  appear  that  none  but  E.  F,  was 
walking  before  C.  D.  at  the  time  of  speaking. 

In  the  case  of  J.  Anson  v.  Stuart, §  the  plaintiff 
was  thus  described  in  the  libel — "  This  diabolical 
character,  like  Polyphemus  the  man-eater,  has  but 
one  eye  ;  and  is  well  known  to  all  persons  well  ac- 
quainted with  the  name  of  a  certain  noble  circum- 
navigator (meaning  by  the  last-mentioned  words  to 
allude  to  the  name  of  the  plaintiff,  J.  Anson.) 

*  1  Rol.  Ab.  85.  1  Rol.  Ab.  75.  t  Cro.  J.  557.  6  Bac.  Ab.  231. 

t  Sir  Miles  Fleetwood  v.  Curl,  Cro.  J.  557.  !!  1  Rol.  Ab.  8J, 

5  1  T.  R.  748. 


90 

From  these*  and  a  number  of  similar  instances, 
it  may  be  laid  down  as  a  general  rule,  that  the  ap- 
plication of  the  words  to  the  plaintiff  is  a  matter  to 
be  collected  by  the  jury,  from  the  particular  circum- 
stances of  each  case. 

The  difficulties  which  occur  upon  this  point,  are 
generally  of  a  technical  nature,  and  consist  in  the 
doubt,  whether  the  plaintiff  has  so  stated  his  case 
in  the  declaration  as  to  show  that  the  conclusion 
could  properly  be  drawn  :  the  consideration  of  these, 
however,  belongs  to  a  subsequent  division  of  the 
subject. 

*  Cro.  Eliz.  497,  Cro.  J.  444.  2  Barnard.  Rep.  Hughes  v.  Winter,  Keb.  525. 


07 


CHAPTER  It 


Where  an  infectious  Disorder  is  imputed. 

Another  branch  of  cases  where  the  law  allows 
an  action  to  be  maintained,  without  the  usual  proof 
of  special  damage,  consists  of  those  where  a  person 
is  charged  with  having  an  infectious  disease,  the  ef- 
fect of  which  imputation,  if  believed,  would  be  to 
exclude  him  from  society.(l) 

It  has  been  said,*  that,  "  Since  man  is  a  being 
formed  for  society,  and  standing  in  almost  constant 
need  of  the  advice,  comfort,  and  assistance  of  his 
fellow-creatures,  it  is  highly  reasonable  that  any 
words  which  import  the  charge  of  having  a  conta- 
gious distemper,  should  be  in  themselves  actionable ; 
because  all  prudent  persons  will  avoid  the  company 
of  one  having  such  a  distemper." 

Since  the  ground  of  proceeding  is  the  presump- 
tion that  the  plaintiff  will  be  wholly  or  partially  ex- 
cluded from  society  and  its  comforts,  the  action  is 
consequently  confined  to  the  imputing  those  disor- 
ders which  are  so  infectious  in  their  nature,  and 
pernicious  in  their  effects,  as  to  render  the  person 
afflicted  an  object  likely  to  be  shunned  and  avoided. 

Actions  for  words  of  this  description  seem,  in  the 
absence  of  special  damage,  to  have  been  confined 

*  6  Bac.  Ab.  212. 
(1)  Per  Parker,  C.  J.  Chaddock  v.  Briggs,  13  Mass,  Rep.  252. 

13 


98 

io  charges  ot  leprosy  and  lues  venerea.  For  though 
it  was  held,  that  an  action  lay  for  saying,  "  He  bu- 
ried people  who  died  of  the  plague  in  his  house,"* 
it  appears  that  special  damage  was  laid  and  proved. 

There  is,  however,  one  case  in  which  it  has  been 
held,  that  to  charge  another  with  having  the  "  fall- 
ing sickness,"!  is  actionable. 

So  great,  formerly,  was  the  dread  of  leprous  con- 
tagion, that  an  especial  writ  was  provided  for  the 
removal  of  the  infected  object  to  some  secluded 
place,  where  he  might  no  longer  be  a  terror  to  so- 
ciety ;  happily  this  writ  has  long  lost  its  use. 

It  seems,  however,  that  though  the  reason  has  in 
some  degree  ceased  to  operate,  an  action  will,  even 
at  this  day,  be  sustainable  for  a  charge  of  either  of 
the  diseases^  alluded  to.(l) 

From  the  case  of  Villars  and  Monsley,||  it  ap- 
pears, that  to  say  another  has  the  itch,  is  not  action- 
able ;  though  such  an  accusation  would  be  actiona- 
ble if  written.  It  is  to  be  remarked,  that  in  the 
above  case  both  Wilmot  C.  J.  and  Gould  J.  seem  to 
take  for  granted,  that  to  impute  the  plague  is  action- 
able ;  but  no  case  was  cited  in  which  this  point  has 
been  expressly  determined. 

The  ground  of  the  action  being  the  presumption 
of  the  plaintiff's  exclusion  from  society,  no  action 
will  lie  for  an  imputation  in  the  past  tense, §  since 
such  an  assertion  does  not  represent  the  plaintiff,  at 

*  Kit.  173.  b.  1  Com.  Dig.  252.  t  1  Rol.  44.  1.  7. 

I  Carslake  v.  Maplcdoram,  2  T.  R.  473.  ||  2  Wils.  403. 

§  Carslake  v.  Mapledoram,  2  T.  R.  473.  Str.  1189. 

(1)  The  original  action  in  Sterling  v.  Mams  et  ux.  3  Day's  Rep.  312,  was 
brought  for  charging  the  defendant  with  having  the  venereal  disease,  and  there 
is  no  doubt  suggested  as  to  its  being  sustainahlr 


1)9 

the  time  of  speaking,  as  unfit  for  society,  and  there- 
fore the  substance  of  the  action  is  wanting  ;  and  it 
was  observed,  in  the  ease  of  Carslake  v.  Mapledo- 
ram,  that  this  doctrine  was  justified  by  all  the  cases, 
except  one,  and  that  loosely  reported. 

With  respect  to  the  terms  in  which  the  imputation 
is  conveyed,  as  in  other  cases,  they  may  either  ex- 
pressly and  by  their  own  power  impute  the  disease, 
or  by  the  aid  of  collateral  circumstances  may  render 
the  implication  unavoidable. 

Thus,  to  say  a  man  has  the  leprosy,*  or  to  call 
him  leprous  knave,  is  actionable :  the  term  leper 
being  in  itself  a  clear  and  unequivocal  designation 
of  the  speaker's  meaning. 

Without  citing  the  disgusting  string  of  cases  upon 
this  subject,  with  which  the  older  reports  abound, 
it  may  be  deemed  sufficient  to  observe,  that  where- 
ver it  can  be  collected  from  the  circumstances,  that 
the  speaker  intended  the  hearers  to  understand  that 
the  person  spoken  of  was,  at  the  time  of  speaking5 
afflicted  with  either  of  the  disorders  above  mention- 
ed, an  action  may  be  maintained.  And  the  meaning 
may  be  evidenced  either  by  reference  to  the  mode  in 
which  the  disease  was  communicated,  the  symptomsf 
with  which  it  is  attended,  its  effects  upon  the  person; 
or  constitution,  the  means ||  of  cure,  the  necessity  of 
avoiding§  the  person  infected  ;  or,  in  short,  by  any  ■ 
other  allusion  capable  of  conveying  the  offensive 
imputation. 

*2T.R.  473.  Cr.  J.  144.  I  Holt.  503, 

|  Cro.  J.  480.  144.  1  Vin.  Ab.  488.  Cro.  El.  214,  289, 

1!  Cro.  J.  430.  Cro.  Eliz.  648.  Roll.  Rep.  420.  §  Cro.  J,  430. 


HXI 


CHAPTER  III. 


Where  the  Imputation  affects  a  Person  in  his  Office, 
Profession,  or  Business. 

Next  to  imputations  which  tend  to  deprive  a  man 
of  his  life,  or  liberty,  or  to  exclude  him  from  the 
comforts  of  society,  may  be  ranked  those  which  af- 
fect him  in  his  office,  profession,  or  means  of  liveli- 
hood. To  enumerate  the  different  decisions  upon 
this  subject  would  be  tedious,  and  to  reconcile  them 
impossible  ;  y  et  they  seem  to  yield  a  general  rule, 
sufficiently  simple,  and  unembarrassed,  namely,  that 
words  are  actionable  which  directly  tend  to  the  pre- 
judice of  any  one  in  his  office,  profession,*  trade,  or 
business.(l) 

Observations  upon  this  class  of  cases  may  be  di- 
vided into  those  relating  to  the  grounds  of  the  ac- 
tion,— the  extent  of  the  action, — and  the  degree  of 
certainly  and  precision  requisite  to  render  the  words 
actionable. 

Words  which  affect  a  person  in  his  office  generally 
are  actionable,  whether  the  office  be  merely  confi- 
dential and  honorary,  or  be  productive  of  emolu- 
ment. The  ground  of  action  in  the  two  cases, 
seems,  however,  to  be  somewhat  different.  Where 
his  office  is  lucrative,  words  which  reflect  upon  the 

*  3  Wits.  186. 
<1)  Per  Yf<rt'$.  5  Riiin.  V2i 


101 

integrity  or  capacity  of  the  plaintiff*  render  his  tenure 
precarious,  and  are  therefore  pro  tanto  a  detriment 
in  a  pecuniary  point  of  view  ;  but  where  the  office 
is  merely  confidential,  the  presumptive  loss  of  emo- 
lument cannot  supply  the  ground  of  action. 

The  whole  class  of  cases  in  which  magistrates, 
and  others  (whose  offices  are  merely  confidential 
and  honorary)  have  been  allowed  to  recover  a  pe- 
cuniary compensation  for  words  relating  to  their  of- 
ficial character,  seems  to  rest  upon  more  dubious 
principles  than  any  other  in  which  a  remedy  is  given 
without  proof  of  specific  loss.  Fcr  since  even  the 
loss  of  office  itself  would  not  be  attended  with  any 
loss  of  emolument,  such  as  would  naturally  result 
from  deprivation  of  liberty,  or  exclusion  from  socie- 
ty, the  evil  seems  scarcely  capable  of  pecuniary 
admeasurement.  Besides,  the  bad  consequences 
which  arise  from  degrading  the  magistracy,  are  of  a 
public  nature,  and  are  therefore  rather  a  matter  of 
civil  than  of  criminal  cognizance,  especially  since 
the  damages  in  a  civil  action  are  not  considered  as 
of  a  penal  nature,  but  given  as  a  private  compensa- 
tion to  the  party  injured.  It  has  long,  however,  # 
been  fully  established,  that  words  are  equally  action-  ? 
able  whether  the  office  or  profession  to  which  they  J 
relate  be  lucrative  or  merely  confidential. 

So  that  words  spoken  of  Justices  of  the  Peace, 
or  physicians,  or  barristers,  are  frequently  action- 
able, although  the  office  of  the  first  is  merely  confi- 
dential, and  the  latter  are  not  in  legal  contemplation 
entitled  to  demand  the  payment  of  fees.  Where 
the  office  is  merely  confidential,  a  singular  distinc- 
tion has  been  taken  between  words  imputing  want 


102 

of  ability  in  the  holder,  and  those  which  charge  him 
with  want  of  integrity. 

It  has  been  held,  that  to  charge  a  person  in  such 
ah  office  with  any  corruption,  or  with  any  ill  design 
or  principles,  is  actionable ;  but  that  to  represent 
him  as  wholly  incompetent,  in  point  of  ability,  to 
hold  the  office,  is  not  a  slander  for  which  an  action  is 
maintainable.  The  reason  assigned  for  the  distinc- 
tion is  so  remarkable,  that  it  may  be  proper  to  give 
it  in  the  words  of  C.  J.  Holt. 

He  says,*  "  It  has  been  adjudged,  that  to  call  a 
Justice  of  the  Peace  blockhead,  ass,  &c.  is  not  a 
slander  for  which  an  action  lies,  because  he  was 
not  accused  of  any  corruption  in  his  employment, 
or  any  ill  design,  or  principle  ;  and  it  was  not  his 
fault  that  he  was  a  blockhead,  for  he  cannot  be 
otherwise  than  his  Maker  made  him  ;  but  if  he  had 
been  a  wise  man,  and  wicked  principles  were  char- 
ged upon  him  when  he  had  not  them,  an  action 
would  have  lain;  for  though  a  man  cannot  be  wiser, 
he  may  be  honester  than  he  is.  If  a  person  be  in 
a  place  of  profit,  and  he  is  accused  of  insufficiency, 

*  he  shall  have  remedy  by  action.     'Tis  otherwise  if 

*  he  be  only  in  a  place  of  honour ;  though  even  there, 
[  if  he  is  charged  with  ill  principles,  and  as  disaffected 

to  the  government,  he  shall  have  an  action  for  such 
scandal  to  his  reputation." 
»  In  the  case  of  Onslow  v.  Horne,f  L.  C.  J.  De 
Grey,  in  giving  judgment,  observed,  "It  was  ob- 
jected at  the  bar,  on  the  side  of  the  defendant,  that 
words  spoken  of  an  officer,  or  magistrate,  are  not 
actionable,   unless  they   carry  an  imputation  of  a 

*  Howe  v.  Prinn,  Holt,  653.  Salk.  691.  t  3  Wils.  186. 


tea 

criminal  breach  of  duty.  I  will  not  give  this  my 
sanction,  because  I  think  for  imputation  of  ignorance 
to  one  in  a  profession  or  office  of  profit,  an  action 
will  certainly  lie." 

The  reason  for  the  distinction  as  given  by  C.  J. 
Holt,   assumes  the  imputation  to  be  true,  in  which 
case  the  defendant  would,  as  the  law  now  stands, 
be  enabled  to  justify  ;  but  the  real  question  seems 
to  be,  not  whether  a  man  can  help  the  natural  dul- 
ness  of  his  faculties,  but  whether  a  person  is  justi- 
fied in  falsely  imputing  to  the  holder  of  an  office,  the 
want  of  an    essential  qualification  for  that    office. 
After  it    had  been  established    that  a   magistrate 
might    recover    a    pecuniary    compensation     for 
words  which  rendered   his  tenure  precarious,  the 
action   in  reason  and  principle  extended  itself  to 
all  imputations  which  could  affect  that  tenure,  and 
since  gross  ignorance  is  as  sufficient  a  cause  of  de- 
privation as   corruption,  it  seems  difficult  to   say 
why  an  imputation  of  the  former  kind  should  not 
be  actionable  as  well  as  of  the  latter ;  the  malice  of 
the  author,  the  falsity  of  the  charge,  and  its  proba- 
ble consequences,  being  in  the  two  cases  precisely 
similar.     It  may  be  added,  that  the   distinction  is 
inconsistent  with  the  class  of  cases  in  which  barris- 
ters and  physicians  (whose  situations  are  in  law 
considered  merely  honorary)  have  been  allowed  to 
recover  for  words  imputing  want  of  ability,  as  well 
as  for  those  which  charged  them  with   want  of  in- 
tegrity. 

The  case  of  Bill  v.  Neale*  was  a  precedent  for 
the  opinion  of  C.  J.  Holt,  in  the  case  of  Hfcwe  v. 
Prinn.f     There  Foster  C.  J.   and  Wyndl*m  and 

*  1  Lev.  52.  f  Holt,  652. 


1 


f 


104 

Twysden  Js.  decided  against  the  opinion  of  Mallet 
J.  that  the  words,  "  He  is  a  fool  or  ass,  a  beetle- 
headed  justice,"  were  not  actionable.  But  the 
three  justices  founded  their  opinion  upon  the  cases 
of  Sir  John  Hollis  v.  Briscow,*  and  of  Hammond 
v.  Kingsmill.f 

In  the  former  case  the  plaintiff  was  a  Justice  of 
the  Peace  and  Deputy  Lieutenant  of  a  county,  and 
the  defendant  said  to  his  servant,  "  Your  master  is 
a  base  rascally  villain,  and  is  neither  nobleman, 
knight,  nor  gentleman,  but  a  most  villanous  rascal, 
and  by  unjust  means  doth  most  villanously  take 
other  men's  rights  from  them,  and  keepeth  a  com- 
pany of  thieves  and  traitors  to  do  mischief,  and 
giveth  them  nothing  for  their  labour  but  base  blue 
liveries,  and  this  all  the  country  reports,  and  other 
good  he  doeth  not  any."  And  the  defendant  had 
judgment,  chiefly  on  the  ground,  that  the  words 
were  to  be  construed  according  to  the  now  exploded 
doctrine  of  the  mitior  sensus,  for  which  reason  the 
case  can  scarcely  be  considered  as  an  authority. 
In  the  latter  case,  the  words  were,  "  He  was  a  de- 
bauched man,  and  not  fit  to  be  a  justice."  But  it 
appears  $  that  the  judgment  in  that  case  was  given 
for  the  defendant  because  the  words  were  spoken^of 
a  time  past ;  and  Twysden  J.  said,  that  it  would 
have  been  otherwise  if  the  words  had  been,  "  he 
is  a  debauched  man."  The  two  cases,  therefore, 
upon  which  reliance  was  placed,  in  the  case  of  Bill 
v.Neale,  were  no  authorities  for  that  decision. 

Where  words  relate  to  a  man's  official  character, 
the  danger  of  exclusion  from  office  gives  rise  to 

*  Cro.  J.  58.  t  7  J.  1, 

1 1  Vent.  50,  Sir  J.  Herle  v.  Osgood. 


i 


105 

the  action.     It  was  held,  indeed,  that  an  action  was 
maintainable   for  the  words,    "  When  thou  wert  a 
justice,   thou  wert  a  bribing  justice."*     And  it  was 
said,  that  though  they  refer  to  a  thing  past,  yet  they 
defame  him  for  ever  in  other  people's  opinions,  and 
make  him  accounted  unworthy  to  bear  office  after- 
ward.    The  authority,   however,  of  this  decision  J 
appears  very  suspicious,  and  the  reason  given  would  / 
apply  to  every  case  where  general  want  of  integrity  i 
is  imputed  to  a  private  individual,  since  it  may  by ' 
possibility  have  the  effect  of  preventing  him  from' 
being  put  into  the  commission. 

C.J.  De  Grey,  in  giving  judgment  in  Onslow 
v.  Home,  said,  "I  know  of  no  case,  wherever  an 
action  for  words  was  grounded  upon  eventual  da- 
mages, which  may  possibly  happen  to  a  man  in  a 
future  situation,  notwithstanding  what  the  Chief 
Justice  throws  out  in  2  Vent.  366.,  where  he  is 
made  to  say,  *  That  where  a  man  had  been  in  an 
office  of  trust,  to  say  he  behaved  himself  corruptly 
in  it,  as  it  imported  great  scandal,  so  it  might  pre- 
vent his  coming  into  that  or  the  like  office  again,'  I 
think  the  Chief  Justice  went,  too  far." 

And  where  an  action  is  brought  for  words  spoken 
of  a  barrister  or  physician,  it  must  appear  that  he 
practised   as   such   at   the   time   the    words    were 
spoken  ;i  for  otherwise  the  words  could  not  have 
affected   him   professionally.      A  doubt   has   been    , 
raised  whether  damages  are  properly  recoverable    . 
by  barristers   and  physicians  for  words   relating  to    ' 
their  professions,  since  their  fees   are  merely  ho- 
norary and  not  demandable  in    a   court  of   law  ;£    ) 

iYel.  153.      t  3  Wils,  18S.       J  6  Bac.  Ab.  215.  lb.  216.  Sty.  231.  Poph,  2tf . 
II  6  Bac.  Ab.  215. 

14 


100 

the  actual  decisions,  however,  upon  the  subject 
leave  no  doubt  as  to  their  right  to  recover  for  such 
words:  and  if  their  situations  be  considered  as  mere- 
ly confidential,  their  right  to  recover  rests  upon  the 
same  foundation  with  that  of  magistrates  and 
others,  whose  offices  are  of  a  similar  description. 

As  to  the  extent  of  the  Action. 

j  l  The  action  appears  to  extend  to  all  offices  of 
1  trust  or  profit  without  limitation,  provided  they  be 
s  of  a  temporal  nature.  Thus  it  has  been  held,  that 
i  an  action  is  maintainable  for  words  spoken  of  a 
/     churchwarden.* 

It  has  been  said,  that  to  call  an  escheator,f  co- 
roner, sheriff,  attorney,  or  such  as  are  officers  of  re- 
)  cord,  "  extortioner,"  an  action  lies ;  but  that  for  call- 
(  ing  a  bailiff  or  steward  of  a  base  court,  who  are  not 
officers  of  record,  "  extortioner,"  no  action  lies  :  be- 
cause extortion  cannot  be  but  in  such  as  are  officers 
of record. 

There  seems,  however,  to  be  little  force  in  this 
distinction,  since  it  has  been  held  that  any  man  is 
punishable  for  extortion. % 

It  was   held,  that  for  saying  of  the   deputy  of 

Clarcncieux,  king  of  arms,  that  he  was   "  a  scrivener 

and  no  herald," ||  an  action  was  maintainable.     So 

/     for  words  of  the  master  of  the  mint  ;§  of  a  clerk  to 

a  public  company  ;f  of  a  town  clerk  ;**  of  a  steward 

1    of  a  court. ft 

*  Sty.  338.  1  Vin.  Ab.  463.  Cro.  J.  339.  2  Buls.  218.  Cro.  E.  358. 
t  Dal.  45.  pi.  35.  1  Vin.  Ab.  463.  X  Dal.  43.  1  Via.  Ab.  463. 

|l  Cro.  El  328.  §  Leo.  88.  H  Cro.  El.  358. 

'Hutt.23.  ++ 1  Roll.  Ab.  56. 


107 

But  where  the  defendant*  said  oi'  a  member  of 
parliament,  "  As  to  instructing  our  members  to  ob- 
tain redress,  I  am  totally  against  that  plan ;  for  as 
to  instructing  Mr.  Onslow  (the  plaintiff,)  we  might 
as  well  instruct  the  winds,  and  should  he  (the 
plaintiff)  even  promise  his  assistance,  I  should  not 
expect  him  to  give  it  us ;"  after  verdict  for  the 
plaintiff,  judgment  was  arrested,  and  it  was  ob- 
served by  C.  J.  De  Grey,  on  that  occasion,  that  the 
words  did  not  charge  the  plaintiff  with  any  breach 
of  his  duty,  his  oath,  or  any  crime  or  misdemeanor, 
whereby  he  had  suffered  any  temporal  loss  in  for- 
tune, office,  or  in  any  way  whatever. 

The  action  extends  to  words  spoken  of  men  in 
their  profession,  as  barristers,!  attorneys,!  physi- 
cians, ||  and  clergy  men.  § 

And  to  words  affecting  a  person  in  the  particular 
art  by  which  he  gains  his  livelihood.  As  of  a  school- 
master :%  it  has  been  held,  indeed,  that  to  slander 
a  schoolmistress,  who  taught  children  to  read  and 
write,  in  her  profession,  was  not  actionable.  The 
authority  of  the  dictum,  however,  appears  ques- 
tionable. It  was  decided  in  the  case  in  which  it  is 
reported  to  have  been  delivered,  that  to  accuse  a 
midwife  of  ignorance  in  her  profession  was  action- 
able ;**  and  it  is  difficult  to  say,  upon  what  principle 
a  schoolmistress  is  not  as  much  entitled  to  the  pro- 
tection of  the  law  against  malicious  attacks,  by 
which  her  means  of  living  are  likely  to  be  impaired, 
as  a  midwife. 

*  Onslow  v.  Home,  3  Wils.  177. 

t  2  Vent.  28.  I  I  Lev.  297. 

II  1  Roll.  Ab.  54.  per  Twysden,  1  Ven.  21.  Cro.  Car.  270. 

§  Al.  63.  3  Lev.  17.  1  Roll.  Ab.  53.  Str.  946. 

*t  2  Roll.  R.  72.  Hct.  71.  **  1  Vent.  21. 


108 

So  any  words  tending  to  injure  a  merchant  or 
tradesman  are  actionable ;  whether  they  reflect 
upon  the  honesty  of  his  dealings,  his  credit,  or  the 
excellence  of  the  subject  matter  in  which  he  deals, 

And  the  action  seems  to  extend  to  words  spoken 
of  a  person  in  any  lawful  employment,  by  which  he 
may  gain  his  livelihood. 

The  defendant  said,*  "  Thou  hast  received  money 
of  the  king  to  buy  new  saddles,  and  hast  cozened 
the  king,  and  bought  old  saddles  for  the  troopers." 
And  the  words  were  held  actionable ;  for  it  was 
said,  it  was  not  material  what  employment  the 
plaintiff  held  under  the  king,  if  he  might  lose  his 
employment  and  trust  thereby,  and  that  it  was  im- 
material whether  the  employment  was  for  life  or 
for  years. 

The  defendant  said  of  a  person  employed  by  the 
under-postmaster  to  carry  about  post  letters,  on 
which  he  had  a  profit,!  "  He  has  broken  up  letters, 
and  taken  out  bills  of  exchange."  After  verdict 
and  judgment  for  the  plaintiff,  one  cause  of  error 
assigned  was,  that  no  action  would  lie  for  scandal- 
izing such  an  employment ;  and  Hale  was  of  opi- 
nion, chiefly  from  the  quality  of  the  employment, 
that  the  judgment  ought  to  be  reversed ;  for  he  said 
that  a  man  should  not  speak  disparagingly  of  his 
cook  or  groom,  but  an  action  would  be  brought,  if 
such  action  could  be  maintained. 

The  humility  of  the  employment  or  occupation 
seems,  however,  to  be  no  objection  to  the  action 
either  in  law  or  reason  ;  and  it  has  long  been  clearly 
established,  that  an  action  is  maintainable  for  mali- 

*  Mar.  82.  1  Vin.  Ab.  465.  pi.  19.  SirR.  Greenfield's  ca<e, 
t  1  Vent.  275. 


109 

cious  misrepresentations  of  the  characters  of  menial 
servants, — a  subject  which  will  afterward  be  more 
fully  considered. 

In  the  case  of  Seaman  v.  Bigg,*  in  the  reign  of 
Cha.  I.,  it  was  held,  that  the  words,  "  Thou  art  a 
cozening  knave,  and  hast  cozened  thy  master  of  a 
bushel  of  barley,"  spoken  of  a  servant  in  husban- 
dry, were  actionable ;  and  the  court  said,  that 
though  true  it  is,  generally,  an  action  will  not  lie 
for  calling  one  cozening  knave,  yet  where  they  be 
spoken  of  one  who  is  a  servant,  and  accomptant, 
and  whose  credit  and  maintenance  depends  upon 
his  faithful  dealing,  and  he  by  such  disgraceful  words 
is  deprived  of  his  livelihood  and  maintenance,  there 
is  good  reason  it  should  leave  an  action  for  loss  of 
his  credit  and  means.  So  the  words,  "  He  is  a 
cheating  knave,"f  applied  to  a  lime-burner  in  his 
employment,  have  been  deemed  actionable. 

But  a  jobber  or  dealer  in  the  public  funds, X  is 
not  considered  as  a  known  trader,  and  possessing  a 
character  as  such. 

It  does  not  appear  necessary,  that  the  party 
should  gain  his  living  in  the  character  to  which  the 
slander  is  applied,  but  it  is  sufficient,  if  he 
habitually  act  in  that  character,  and  derive  emolu- 
ment from  it. 

The  rule,  however,  does  not  seem  to  extend  to 
representations,  which  affect  nothing  more  than 
casual  instances,  in  which  the  plaintiff  has  assumed 
such  a  character.  So  that  words  misrepresenting 
the  value  of  a  horse,  or  particular  piece  of  furni- 
ture, which  the  proprietor  wishes  to  dispose  of 

•  Cro.  Car.  480.        1 1  Lev.  115.  Terry  v.  Hooper.        t  2  Bos.  and  Pul.  284. 


110 

would  not  be  actionable,  unless  some  special  damage 
resulted  from  them. 

Next  as  to  the  degree  of  certainty  and  precision 
requisite  to  make  the  words  actionable. 

The  only  question  arising  upon  this  point  seems 
to  be — do  the  words  in  any  degree  prejudice  the 
plaintiff  in  his  office,  profession,  or  employment  ? 
if  they  do,  they  are  actionable  ;  the  quantum  of  da- 
mage being  a  mere  question  of  fact  for  the  consi- 
deration of  the  jury. 

Words  in  general  belonging  to  this  class  must  re- 
late to  the  plaintiff's  integrity,  his  knowledge,  skill, 
or  diligence,  his  credit,  or  to  the  subject  matter  in 
which  he  deals. 

The  effect  of  such  imputations  will  be  separately 
considered. 

To  impute  want  of  integrity  to  any  person  who 
/  holds  an  office  of  trust  or  of  profit  is  actionable  : 
as  to  say  of  a  judge,*  that  "  His  sentence  was  cor- 
ruptly given."  (1) 

Or  of  a  justice  of  the  peace,  f  "I  have  often  been 
with  him  for  justice,  but  could  never  get  any  thing 
at  his  hands  but  injustice."(2) 

Or,  "  He  covereth  and  hideth  felonies, :{:  and  is 

not  worthy  to  be  a  justice  of  the  peace." 

9      Where  a  person  holds  an   office  or  situation,  in 

[   which  great  trust  and  confidence  must  be  reposed 

J    in  him,  words  impeaching  his  integrity  generally, 

*  Cro.  Eliz.  305.  t  Cro.  Car.  14.  J  4  Rep.  lG. 


(1)  Per  Parker,  C  J.  13  Mass.  Rep.  253.  Chipman  v.  Cook,  2  Tyl.  Rep.  456. 
Dole  v.  Van  Renssdaer,  1  Johns.  Ca.  279. 

(2)  See  Lindsey  v.  Smith,  7  Johns.  Rep.  360.  But  the  words  must  have  ex- 
press relation  to  his  official  character,  or  they  will  not  be  actionable.  Oakley 
v.  Farrington,  1  Johns.  Ca.  129. 


Ill 

and  without  express  reference  to  his  office,  are  ae» 
tionable  ;  since  they  must  necessarily  attach  to  him 
in  his  particular  character,  and  virtually  represent 
him  as  unfit  to  hold  that  office  or  situation. 

Thus  it  has  been  held,  that  to  say  of  a  bishop 
"  He  is  a  wicked  man,"*  is  actionable. 

The  defendant  said  of  a  justice  of  the  peace  and 
deputy  lieutenant,!  "  He  is  a  Jacobite,  and  for  bring- 
ing in  the  prince  of  Wales  and  popery."  And  the 
words  were  held  actionable,  though  it  did  not  appear 
that  the  speaker  applied  the  words  to  his  offices,  be- 
cause, without  any  such  application,  they  imputed 
such  religious  opinions  and  political  principles,  as 
rendered  him  in  law  unfit  for  those  situations. 

So  where  the  defendant  said  of  the  plaintiff,  who 
was  a  justice  of  the  peace,}:  "  I  am  in  danger  of  my 
life,  my  blood  is  sought,  and  I  was  like  to  have  been 
murdered ;  I  was  at  Sir  J.  Harper's  (the  plaintiff's) 
house,  and  John  Harper  drew  me  forth  to  see  a  geld- 
ing hi  the  stable,  and  then  Thomas  Beaumond,  Sir 
H.  Beaumond's  son,  did  throw  his  dagger  at  me 
twice,  and  thrust  me  through  the  breeches  twice 
with  his  rapier  to  have  killed  me,  all  this  was  done 
by  the  instigation  of  Sir  J.  Harper,  and  I  can  prove 
it." 

In  this  case,  although  no  misconduct  in  office  was 
particularly  pointed  out,  it  was  held  that  the  action 
well  lay ;  the  instigation  to  do  such  an  outrageous 
act  being  against  the  plaintiff's  oath,  and  a  great 
misdemeanor,  for  which  he  was  liable  to  fine  and  to 
be  put  out  of  the  commission. 

The  defendant  said  to  the  plaintiff,  who  was  one 

'-  2  Mod.  159.  t  How  v.  Prinn,  Holt,  652. 

X  Sir  J.  Harper  v.  Francis  Beaumond,  Cr.  J.  56. 


112 

of  the  attorneys  or  clerks  of  the  King's  Bench,  and 
sworn  to  deal  duly  without  corruption  in  his  office, 
"  You  are  well  known  to  be  a  corrupt  man,  and  to 
deal  corruptly."  And  upon  giving  judgment  for  the 
plaintiff,  it  was  said,  quod  sermo  relatus  ad  personam, 
intelligi  debet  de  conditione  persona.* 

The  defendant  said  of  the  plaintiff,  who  was  an 
attorney,  generally,!  "  He  is  a  common  barretor." 
After  verdict,  though  it  was  objected,  that  the  words 
were  not  actionable,  having  been  spoken  of  the 
plaintiff  as  a  common  person,  and  not  in  relation  to 
his  office,  yet  the  court  held  that  the  action  was  main- 
tainable, since  it  is  a  great  slander  to  an  attorney  to 
be  called  and  accounted  a  common  barretor,  who  is 
a  maintainer  of  brabbles  and  quarrels,  and  said  that 
words  are  to  be  construed  secundum  conditionem  per- 
sonarum  of  whom  they  are  spoken. 

The  defendant  said  of  an  attorney, %  "Thou  art 
a  false  knave,  a  cozening  knave,  and  hast  gotten  all 
that  thou  hast  by  cozenage,  and  thou  hast  cozened 
all  that  have  dealt  with  thee."  And  the  court  held 
that  the  words  were  actionable,  as  touching  the  plain- 
tiff in  his  profession.  (1) 

An  attorney  brought  an  action  for  the  words, ||  "I 
have  taken  out  a  judge's  warrant  to  tax  Phillips's 
(the  plaintiff's)  bill,  I'll  bring  him  to  book,  and  shall 
have  him  struck  off  the  roll."  Lord  Kenyon  C.  J. 
ruled,  at  nisi  prius,  that  the  words  were  not  action- 
able; and  added,  had  the  words  been,  "  He  deserves 


*  4  Rep.  16.  t  Cro.  Car.  192. 

%  Cro.  Jac.  586.  ||  Phillips  v.  Jansen,  2  Esp.  624. 

(t)  See  1  Binn.  184. 


113 

10  have  been  struck  off  the  roll,"  they  would  have 
been  actionable.(l) 

With  respect  to  this  distinction,  it  may  be  proper 
to  suggest  a  doubt,  whether  the  words  in  the  princi- 
pal case  cited  would  not  in  common  acceptation  con- 
vey to  the  hearer  the  same  meaning  with  the  words 
which  the  learned  judge  is  reported  to  have  deemed 
actionable,  since  they  seem  as  clearly  to  evince  the 
opinion  of  the  speaker,  that  the  plaintiff  deserved  to 
be  struck  off  the  roll,  and  no  one  would  choose  to 
employ  an  attorney  who  made  exorbitant  charges* 

Words  imputing  dishonesty  to  a  tradesman,  it 
seems,  are  not  actionable,  unless  spoken  with  refer- 
ence to  trade.  So  that  to  call*  a  tradesman  a  cheat, 
generally,  has  been  held  not  actionable. (2)  But 
otherwise  to  say,  "  He  keeps  false  books  ;"f  for  the 
words  evidently  relate  to  his  course  of  trading. (3) 
So  to  call  a  tradesman  a  rogue  j  or  a  cheat,  with  re- 
ference to  his  trade,  is  actionable.  But  to  say  ge- 
nerally of  such  a  person,  "  Thou  hast  no  more  than 
what  thou  hast  got  by  cozening  and  cheating,"|f  has 
been  held  not  actionable. § 

It  may,  however,  be  doubted,  whether  there  is 
any  solid  distinction  between  these  cases,  since 
every  tradesman's  livelihood  depends  in  some  mea- 

*  3  Salk.  S26.  t  Holt,  R.  39.  X  Burr.  1688- 

i|  12  Mod.  307.  §  12  Mod.  307. 

(1)  But  to  say  of  an  attorney  or  counsellor  in  a  particular  suit,  "  F.  knows 
nothing  about  the  suit,  he  will  lead  you  on  till  he  has  undone  you,"  is  not  ac- 
tionable, without  alleging  and  proving  special  damage.  Fool  v.  Brown,  8  Johns- 
Rep.  50. 

(2)  Marshall  v.  Addison,  4  Harr.  and  M'llen.  Rep.  437,  contra,  the  case , 
however,  can  hardly  be  considered  as  authority. 

(3)  Burtch  v.  Nickerson,  1?  Johns.  Rep.  217,  Sec  Backus  v.  RicharZso'u,  5 
.Tohns.  Rep.  475. 

15 


114 

sure  upon  his  general  character  for  honesty  and  in- 
tegrity ;  and  it  is  difficult  to  suppose,  that  a  general 
imputation  of  dishonesty,  if  believed,  would  not  ope- 
rate to  his  prejudice.  It  seems  that  trust  and  confi- 
dence must  be  reposed  in  the  plaintiff,  in  order  to 
render  words  reflecting  upon  his  character  for  inte- 
grity actionable.  Thus  the  words  of  a  carpenter,* 
"  He  has  charged  Mr.  Andrews  for  40  days'  work, 
and  received  the  money  for  the  work,  that  might 
have  been  done  in  10  days,  and  he  is  a  great  rogue 
for  his  pains,"  were,  after  verdict,  held  not  to  be  ac- 
tionable. 

The  distinction  seems  to  be  this :  Where  great 
confidence  must  necessarily  be  reposed,  as  in  an 
attorney  or  superintendent,  words  generally  re- 
flecting upon  his  character  are  actionable  ;  but  where 
mere  ordinary  confidence  is  reposed,  in  the  common 
course  of  honest  dealing,  as  that  a  tradesman  shall 
charge  a  fair  price  for  his  goods,  or  an  artificer,  sur- 
veyor, or  mechanic  for  his  labour,  the  law  holds  the 
words  not  to  be  so  injurious  as  to  bear  an  action  un- 
less they  are  applied  to  the  plaintiff's  trade  or  busi- 
ness with  certainty  and  precision.  So  where  the 
office,  profession,  or  employment  of  the  plaintiff,  re- 
quires great  talent  and  high  mental  attainments,  ge- 
neral words,  imputing  want  of  ability,  are  actionable 
without  express  reference  to  his  particular  charac- 
ter, since  they  necessarily  include  an  inability  to 
discharge  the  duties  of  such  a  situation  ;  but  where 
the  employment  is  of  a  mere  mechanical  nature,  the 
words  to  be  actionable  must  be  applied  to  it  clearly 
and  unequivocally. 

'•  Lancaster  y,  French.    Str.  iS7. 


115 

Thus,  to  say  of  a  barrister,*  generally,  that  he  is 
a  "  dunce,"  is  actionable,  the  word  dunce  being 
commonly  taken  to  mean  a  person  of  dull  capacity 
who  is  not  fit  to  be  a  lawyer. 

So,  to  say  of  a  physician,!  that  he  is  "  no  scho- 
lar" is  actionable,  a  learned  education  being  consi- 
dered as  an  essential  qualification  in  the  medical 
profession.(l) 

To  say  of  a  servant,  that  he  is  a  "  lazy,  idle,  and 
impertinent  fellow,"  is  actionable  ;  for  these  words, 
though  spoken  without  express  reference  to  his 
service,  cannot  but  affect  his  character  as  a  servant, 
since  no  one  would  be  willing  to  employ  a  person 
whose  general  characteristic  was  idleness  and  im- 
pertinence. 

In  general,  however,  the  words  must  be  spoken 
with  reference  to  the  particular  situation  of  the 
plaintiff,  in  which  case  they  are  actionable  if  they 
impute  any  want  of  knowledge,  skill,  or  diligence, 
in  the  exercise  of  his  office  or  avocation  :  as  to  say 
of  an  apothecary  t —  "  It  is  a  world  of  blood  he  has 
to  answer  for  in  this  town :  through  his  ignorance 
he  did  kill  a  woman  and  two  children  at  Southamp- 
ton ;  he  did  kill  J.  P.  at  Petersfield  ;  he  was  the 
death  of  J.  P. ;  he  has  killed  his  patient  with  phy- 
sic." 

So  where  the  defendant  said  of  a  midwife,— 
«  Many  have  perished  for  her  want  of  skill."|| 

The  words  spoken  of  a  watchmaker  were,  "  He 

*  Peard  v.  Johnes,  Cro.  Car.  3S2- 

t  6  Bac.  Ab.  215. 1  Roll.  Ab.  51.  Cro.  Car.  270. 

I  Tutty  v.  Alewin,  11  Mod.  221.  II  Flower's  case,  Cro.  Car.  211. 


fj)  Per  curiam,  Davis  v.  Pavis,  1  Nott  and  MfCorA'a  Rep-  290. 


116 

is  a  bungler,  and  knows  not  how  to  make  a  good 
piece  of  work."*     After  verdict  for  the  plaintiff,  the 
words,  on  motion  in  arrest  of  judgment,  were  held 
by  the  court  not  to  be  actionable,  not  having  been 
laid  to  be  of  the  plaintiff's  trade,  but  it  was  said  that 
had  the  words  been,  "  he  knows  not  how  to  make  a 
good  watch,"  they  would  have  been  actionable.     It 
may,  however,  be  doubted  whether  this  case  would 
not  now  meet  with  a  different  decision ;  the  point 
upon  which  the  court  gave  judgment,  was  in  a  great 
measure  technical ;  and  indeed  the  averment,  that 
the  words  were  spoken  in  derogation  of  the  plain- 
tiff's workmanship,  seems  scarcely  necessary,  for  if 
it  were  believed  that  the  plaintiff  was  a  bungler,  and 
could  not  make  any  piece  of  work  well,  how  could 
it  be  supposed  that  he  could  make  a  good  watch,  a 
piece  of  work  requiring  very  considerable  skill  and 
dexterity. 

The  law  has  shown  great  tenderness  in  protect- 
ing merchants  and  traders  against  imputations  upon 
their  credit,  which  if  believed  must  necessarily  ope- 
rate to  their  serious  prejudice.(l)  Formerly,!  in- 
deed, it  was  held  that  the  words,  to  support  an  ac- 
tion, must  import  bankruptcy  :  this  doctrine  has, 
however,  long  been  abandoned,  and  it  seems  that 
<mch  words  spoken  of  a  person  in  any  business  are 
now  considered  as  actionable.  It  is  not  essential  to 
the  action,  that  the  words  should  impute  want  of 
credit  at  the  time  of  speaking  them.  The  defend- 
ant said,  "  He  came  a  broken  merchant  from  Ham- 

*  Redman  v.  Pyne,  1  Mod.  19.  t  Holt,  39. 

M)  Seel  Birin.  184. 


117 

burgh  ;"*  and  the  words  were  held  actionable,  since 
the  plaintiff  was  charged  with  having  been  once 
broken,  et  qui  semel  est  mains  semper  prcesumitur 
esse  malus  in  eodem  genere,  and  that  they  were  a 
cause  of  discrediting  the  plaintiff  in  his  trade,  and 
of  injuring  him  in  his  credit,  which  was  a  great 
means  of  gain.     And  it  is  not  necessary  that  the 
words  should  be  spoken  with  express  reference  to 
the  plaintiff's  trade,  since  a  general  charge  of  want 
of  credit  necessarily  includes  the  particular  one,  and 
is  equally  pernicious  with  a  more  precise  allegation. 
Thus,  to  say  generally  of  a  merchant,  that  he  is 
"  broken,"  is  actionable,  these  being  common  and 
vulgar  words  of  one  who  fails  in  his  credit  and  be- 
comes a  bankrupt.     Words  of  this  class  are  action- 
able when  applied  to  a  person  carrying  on  a  business 
purely  mechanical,  so  that  to  call  a  dyerf  bankrupt 
knave  is  actionable.  (1) 

And  any  words,  which  in  common  acceptation 
imply  want  of  credit  are  sufficient,  as  to  say  of  a 
tailor,  \  "I  heard  you  were  run  away."  Formerly, 
indeed,  it  was  held  that  to  call  a  trader  "bankrupt- 
cy knave" II  was  not  actionable :  but  the  distinction 
between  words  adjectively  spoken,  and  those  con- 
taining an  express  and  direct  allegation,  have,  as  has 
already  been  observed,  been  long  deservedly  dis- 
regarded. 

So,  to  say  of  a  stock-broker, §  that  he  is  "  a  lame 
duck,"  is  actionable. 
So  of  a  trader,  "  You  are  a  sorry  pitiful  fellow  and 

*  Cro.  Car.  387.  t   Cro.  J.  585,  \  Davis  v.  Lewis,  7  T.  R.  17. 

II  Cro.  J.  345.  §  Morris  v.  Langsdale,  2  B.  and  P.  84. 

(1)  To  call  a  drover  a  bankrupt  is  actionable,  without  proof  of  special  da- 
mage. Lewis  v.  Hmvley,  2  Pay,  495.  So,  a  brewer.  Hall  v.  Smith,  1  Man. 
and  Selw.  287, 


lib 

a  rogue,  and  compounded  your  debts  for  5*.  in  the 
pound."*(l) 

So  where  the  defendant  said,f  "  All  is  not  well 
with  Daniel  Vivian ;  there  are  many  merchants  who 
have  lately  failed,  and  I  expect  no  otherwise  of 
Daniel  Vivian."(2) 

So,  to  say  of  a  pawnbroker, t  "He  is  a  broken 

fellow." 

To  a  milliner,  ||  "  You  are  not  worth  a  farthing." 

So,  though  words  merely  import  the  speaker's 
opinion;  as  where  the  defendant  said,§  "  Two  dyers 
are  gone  off,  and  for  aught  I  know  Harrison  will  be 
so  too  within  this  time  twelvemonth." 

So  where  defendant  said  toan  upholsterer,  1 "  You 
are  a  soldier,  I  saw  you  in  your  redcoat  doing  duty ; 
your  word  is  not  to  be  taken :"  the  words  were  held 
actionable,  it  being  a  common  practice,  at  the  time 
they  were  spoken,  for  traders  to  protect  themselves 
against  their  creditors  by  a  counterfeit  enlisting,  a 
soldier  having  by  act  of  parliament  the  privilege  of 
freedom  from  arrest. 

So  where  the  words  were  of  a  carpenter,**  "  He 
is  broken  and  run  away,  and  will  never  return 
again  :"  after  verdict  for  the  plaintiff,  it  was  urged 
in  arrest  of  judgment,  that  the  words  were  not  ac- 
tionable, for  though  broken,  the  plaintiff  was  as 
good  a  carpenter  as  ever ;  but  it  was  answered  by 

*  Ld.  Raym.  1480.  Str.  762.  t  3  Salk.  326. 

}  Holt  R.  652.  II  Cro.  Car.  265. 

§  10  Mod.  196,  Harrison  v.  Thornborough. 

IF  Arne  v.  Johnson,  10  Mod.  111. 

**  Chapman  v.  Lamphire,  3  Mod.  155. 


(1)  So  "  You  have  got  my  money  on  your  shelves  ;  you  are  a  damned  rogue." 
Davis  v.  Davis,  1  Nott  and  M'Cord's  Rep.  290.  See  Hoyle  v.  Young-,  1  Wash. 
Rep.  152. 

(2)  See  Ehe  v,  Ferris,  Anth.  N.  P.  Rep.  23. 


1X9 

the  court,  that  the  credit  which  a  man  has  in  the 
world  may  be  the  means  to  support  his  skill,  for 
he  may  not  have  an  opportunity  to  show  his  work- 
manship without  those  materials  wherewith  he  is 
intrusted. 

And  where  defendant  said  of  a  husbandman,' 
"He   owes    more  than   he  is    worth;  he   is   run 
away:"  the   words   were  held  actionable,  though 
it  was  objected  that  it  should  not  only  appear  that  the 
plaintiff  had  a  trade,  but  that  he  got  his  living  by  it. 

And  next,  the  words  are  actionable  when  they 
throw  discredit  upon  the  particular  commodity  in 
which  the  party  deals. 

Thus,  to  say  of  a  trader,!  "  He  hath  nothing  but 
rotten  goods  in  his  shop,"  is  actionable  ;  though  it 
was  said  in  the  case  referred  to,  that  had  the  words 
been  "he  hath  rotten  goods  in  his  shop,"  they 
would  not  have  supported  the  action,  and  that  the 
slander  consisted  in  saying  that  he  had  nothing  but 
rotten  goods  in  his  shop. 

So  to  tax  a  bookseller  falsely]:  with  having  pub- 
lished an  absurd  poem,  is  actionable,  the  evident 
tendency  of  the  imputation  being  to  injure  him  in  his 
business. 

So  where  the  defendant  said  of  the  plaintiff,  who 
was  an  innkeeper,||  "Deal  not  with  Southam,  for 
he  is  broken,  and  there  is  neither  entertainment 
for  man  nor  horse." 

So  a  false  and  malicious  account§  of  the  perform 

*  Dobson  v.  Thorstonc,  3  Mod.  112.  t  Cro.  Car.  570. 

t  Tabert  v.  Tipper,  1  Camp.  N.  P.  350.  I!  3  Salk.  326. 

S  Dibdin  v.  Swan  and  Bostock,  1  Esp.  27. 


120 

Since  at  a  place  of  public  amusement  will  support  an 
actional ) 

So  where  the  defendant,  who  was  printer  of  a 
newspaper,  called   the  Oracle,  published  the  fol- 
lowing paragraph  concerning  the  True  Briton  news- 
paper, of  which  the  plaintiff  was  proprietor : 
"  Times  v.  True  Briton.* 

"  In  a  morning  paper  of  yesterday  was  given  the 
following  character  of  the  True  Briton : — that  *  It 
was  the  most  vulgar,  ignorant,  and  scurrilous  jour- 
nal ever  published  in  Great  Britain.'  To  the  above 
assertion  we  assent,  and  to  this  account  we  add,  that 
the  first  proprietors  abandoned  it,  and  that  it  is  the 
lowest  now  in  circulation,  and  we  submit  the  fact  to 
the  consideration  of  advertisers." 

It  was  held  by  Lord  Kenyon  at  JNhi  Prills,  that, 
the  latter  words  of  the  paragraph,  as  affecting  the 
sale  of  the  paper  and  the  profits  made  by  advertis- 
ing, were  actionable. (2) 

Where  the  plaintiff  was  a  butcher, f  and  brought 
his  action  for  the  words  taxing  him  with  having 
exposed  to  sale  the  flesh  of  a  cow  which  died  in 
calving,   it  was   held  after  verdict,  that  the  words 

'Heriot  v.  Stewart,  1  Esp.  437.  f  Tassan  v.  Rogers,  2  Salk.  69.3. 

(1)  Bat  in  an  action  for  libelling  the  plaintiff  in  his  vocation,  as  an  exhibiter 
of  sparring  matches,  the  Jury  were  directed  to  consider,  whether  the  plaintiffs 
exhibitions  were  not  illegal,  as  tending  to  form  prize  fighters,  the  Judge  de- 
claring such  to  be  his  opinion,  but  recommending  to  the  Jury  to  find  a  verdict 
for  the  plaintiff,  in  order  that  the  question  might  be  fully  discussed  on  a  motion 
to  set  aside  such  verdict ;  a  verdict  having  been  found  for  the  defendant,  the 
court  refused  to  grant  a  new  trial.  A  party  who  pursues  an  illegal  avocation 
has  no  remedy  by  action  for  a  libel  regarding  his  conduct  in  such  roca'til" 
Hunt  v.  Bell,  1  Bingh.  Rep.  1.  S.  C  7  Moore's  Rep.  212. 

(?)  See  Stuart  v.  Lovell,  2  Starkie's  Rep.  93. 


121 

w  ere  not  actionable,  even  though  special  damage 
was  laid  and  proved.  This  case  seems,  however, 
to  be  very  loosely  reported,  and  is  not  supported 
by  either  analogy  or  principle. 

Unless  words  affecting  the  plaintiffs  means  of 
livelihood  fall  within  one  of  the  foregoing  descrip- 
tions, it  may  be  concluded  that  they  are  not  action- 
able. 

The  defendant  said  of  the  plaintiff,  who  taught 
girls  to  dance,  "  that  she  was  an  hermaphrodite,"* 
and  it  was  held  that  the  words  were  not  actionable, 
and  that  it  was  no  scandal  to  her  profession  to  say 
that  she  was  an  hermaphrodite,  because  men  usually 
teach  young  women  to  dance. 

*  3  Salk.  397. 


10 


"122 


CHAPTER  IV. 


Where  the  Words  tend  to  the  Party's  Disinherison* 
or  affect  his  Title  to  Land. 

Words  falling  within  this  division  either  affect  the 
the  probability  of  the  plaintiff's  succeeding  to  an 
estate  in  future,  or  impeach  a  title  which  has  already 
accrued. 

Instances  of  the  former  class,  where  damages 
have  been  allowed  to  be  recovered  on  account  of 
the  manifest  tendency  of  the  imputation  to  defeat 
the  plaintiffs  expectations,  are  exceedingly  rare, 
and  seem  to  have  been  confined  to  words  impeach- 
ing the  legitimacy  of  the  birth  of  an  heir  appa- 
rent. 

The  defendant*  said  to  the  plaintiff,  who  was 
heir  apparent  to  his  father  and  uncle,  "  Thou  art 
a  bastard."  After  verdict  for  the  plaintiff,  the 
court,  on  motion  in  arrest  of  judgment,  held  that 
the  action  was  maintainable,  since  by  reason  of 
the  words  the  plaintiff  might  be  in  disgrace  with  his 
father  and  his  uncle,  and  they  conceiving  a  jealousy 
of  him  touching  the  same,  might  possibly  disinherit 
him,  and  that  though  they  eventually  should  not, 
yet  that  the  action  well  lay  for  the  damage  which 
might  come  ;  and  the  cases  of  Vaughan  v.  Leigh, 
and  of  Bannister  v.  Bannister,  f  were  cited  by  Jones* 
J.  as  in  point. 

*  Humphreys  v.  Stanfield,  Cro.  Car-  469,  Jo.  388.  Godb.  451. 
4  Cote,.  17. 


\2) 

In  the  lirst  of  these  cases"  the  plaintiff  showed 
that  land  had  been  given  in  tail  to  his  grandfather, 
and  that  his  father  had  divers  sons,  whereof  he  was 
the  youngest,  and  his  elder  brothers  living.  That  a 
certain  person  offered  to  buy  the  land,  and  was  will- 
ing to  give  him  such  a  sum  of  money  for  his  title, 
and  by  reason  of  the  words  refused  to  give  him  airy 
thing.  After  judgment  for  the  plaintiff  in  the  Ex- 
chequer, it  was  assigned  for  error,  that  it  appeared 
by  the  plaintiff's  own  showing  that  he  had  not  any 
present  title,  and  therefore  no  cause  of  action.  But 
the  two  Chief  Justices  conceived  that  although  he 
had  not  any  present  title,  it  appeared  that  he  had  a 
possibility  of  inheriting  the  lands,  and  that  being 
offered  a  sum  of  money  to  join  in  the  assurance,  al- 
though he  had  not  any  present  title,  yet  by  reason 
of  the  words  he  had  a  present  damage,  and  in  fu- 
ture might  receive  prejudice  thereby  in  case  he 
were  to  claim  the  lands  by  descent. 

This  case,  though  cited  as  an  authority  for  the 
former  decision,  does  not  warrant  it  to  the  full  ex- 
tent, since  in  the  latter  a  loss  had  actually  accrued 
to  the  plaintiff  in  consequence  of  the  words ;  in  the 
former  the  supposed  prejudice  consisted  in  the  pro- 
bability that  the  expectation  of  the  heir  apparent 
would  be  defeated. 

In  the  case  of  Turner  v.  Sterling, f  it  was  said  by 
the  court,  "  The  law  gives  an  action  for  but  a  possi- 
bility of  damage,  as  an  action  lies  for  calling  an  heir 
apparent  bastard." 

In  an  earlier  case:}:  the  court  observed,  "  The 

*  Cro.  J.  215.  by  the  name  of  VaugLan  v.  Ellis. 

t  2  Vent,  26.     Vanjrhan,  J.  dissent.  S  2  Bui*.  90. 


word  bastard  is  determinable  by  the  Spiritual 
Court ;  but  if  the  plaintiff  add  further  words  to  en- 
title himself  as  heir,  or  show  some  possibility  of  be- 
ing heir,  this  shall  make  the  same  words  calling  him 
bastard  to  be  actionable. 

The  decisions  upon  this  point  do  not,  however, 
appear  to  have  been  uniform  ;  in  the  case  of  Tur- 
ner v.  Sterling*  above  cited,  Vaughan,  J.  said,  "  I 
take  it  not  to  be  actionable  to  call  a  man  a  bastard 
whilst  his  father  is  alive,  the  books  are  cross  in  it ; 
nay,  if  lands  had  descended,  I  doubt  whether  it 
would  be  actionable  any  more  than  to  say  one  has 
no  title  to  land." 

The  last  express  decision  upon  the  point  ap- 
pears to  be  that  of  Humphreys  v.  Stanfield  above 
referred  to. 

Words  impeaching  the  plaintiff's  present  title  to 
lands,  have  in  many  of  the  older  cases  been  deemed 
actionable  without  proof  of  special  damage. 

Thus,  where  a  remainder  manf  brought  an  action 
against  the  defendant  for  saying  that  the  tenant  in 
tail  had  issue  one  D.  who  was  then  alive,  it  was  held 
that  the  action  was  maintainable. 

It  appears,  however,  %  from  a  numerous  class  of 
decisions,  that  no  action  can  be  supported  for  words 
affecting  the  present  title  of  a  plaintiff  to  an  estate, 
without  showing  that  some  special  damage  and  in- 
convenience has  resulted  from  them,  as  that  he  was 
prevented  from  selling  or  making  some  advantage- 
ous disposition  of  it :  the  particular  nature  of  such 
specific  prejudice  will  be  hereafter  considered. 

*  2  Vent.  26.     See  also  1  Roll.  Abr.  37.  pi.  18.  +  Cro.  Car.  469. 

I  Bliss  v.  Stafford,  Ow.  27.     Mo.  188.     Jenk.  247. 

II  Cro.  Eliz.  196.    3  Keb.  153.    1  Vin.  Ab.  553.    Sty.  169.  176.    Palm.  529. 
Snedc  v,  Badley,  S  Buls.  74. 


126 

Although  the  numerous  decisions  upon  the  sub- 
ject seem  to  leave  no  doubt  that  words  reflecting 
upon  a  party's  present  title  must,  to  give  a  right  of 
action,  be  attended  with  special  damage,  it  does  not 
follow  as  an  immediate  and  necessary  consequence 
of  this  doctrine,  that  imputations  immediately  tend- 
ing to  defeat  the  prospects  of  an  heir  apparent,  are 
not  in  themselves  actionable,  though  it  appears  at 
first  sight  somewhat  strange  to  say  that  it  can  be 
considered  more  prejudicial  to  impeach  a  title  rest- 
ing merely  in  expectancy,  than  to  derogate  from 
one  already  existing.  There  is,  however,  a  plain 
line  of  distinction  between  the  two  cases.  Where 
lands  have  already  descended  to  the  heir,  to  call 
him  bastard,  can  work  little  prejudice  ;  the  false 
imputation  cannot  divest  the  estate,  though  it  may 
involve  the  owner  in  litigation,  for  which  special 
damage  he  is  entitled  to  his  remedy  ;  but  reflections 
of  this  nature,  when  cast  upon  an  heir  apparent, 
may  produce  consequences  infinitely  more  serious, 
since  they  may  induce  the  ancestor  to  disinherit  the 
progeny  which  he  conceives  to  be  spurious. 

In  the  former  case  the  evil  resulting  from  the 
slander  can  be  but  slight  and  temporary  ;  in  the  lat- 
ter it  may  prove  utterly  irremediable.  The  cases 
relating  to  words  of  the  latter  description  are  of 
considerable  antiquity  and  of  rare  occurrence,  and 
though  they  certainly  carry  the  doctrine  of  pre- 
sumptive and  anticipative  loss  to  a  great  extent,  yet 
they  seem  to  be  supported  and  warranted  both  by 
general  principles  and  by  the  peculiar  exigency  of 
the  case. 


126 


CHAPTER  V. 


Where  the  Slander  is  propagated  by  Printing, 
Writing,  or  Signs. 

Besides  the  communications  which  have  been 
enumerated  under  the  preceding  divisions,  many 
have  been  considered  actionable,  although  unat- 
tended with  special  damage,  on  account  of  the  mode 
in  which  they  have  been  effected. 

Observations  upon  this  class  of  cases,  relate, 
either  to  the  reasons  and  authorities  for  this  dis- 
tinction, or  to  the  extent  to  which  the  doctrine  has 
been  carried. 

First,  as  to  the  reasons  and  authorities  upon 
which  the  distinction  is  founded. 

It  has  been  said*  that  "  slander  in  writing  has  at 
all  times,  and  with  good  reason,  been  punished  in  a 
more  exemplary  manner  than  slanderous  words,  for 
&s  it  has  a  greater  tendency  to  provoke  men  to 
breaches  of  the  peace,  quarrels,  and  murders,  it  is 
of  much  more  dangerous  consequence  to  society. 
Words,  which  are  frequently  the  effect  of  a  sudden 
gust  of  passion,  may  soon  be  buried  in  oblivion ; 
but  slander  which  is  committed  to  writing,  besides 
that  the  author  is  actuated  by  more  deliberate  ma- 
lice, is  for  the  most  part  so  lasting  as  to  be  scarcely 
ever  forgiven."(l) 

*  6  Bac.  Ab.  202,  tit.  Slander. 


(ll  M'Clurg  v.  Ross,  5Binn.  219 


And,  that  "  written  slander  hereby  receives  an 
aggravation,  in  that  it  is  presumed  to  have  been  en- 
tered upon  with  coolness  and  deliberation,  and  to 
continue  longer  and  propagate  wider  and  farther 
than  any  other  scandal."  * 

These  grounds  relate  to  three  distinct  points  : 

1.  The  malicious  intention  of  the  author  of  the 
scandal. 

2.  The  increased  detriment  to  the  object  of  the 
slander  from  its  more  extended  circulation  and 
duration. 

3.  The  danger  to  the  public  peace. 

First,  It  is  clear  that  written  slander  evinces  a 
higher  degree  of  deliberation,  and  therefore  of  ma- 
lice, than  that  which  is  mei  ely  oral ;  it  may,  how- 
ever, be  doubted  whether  that  superior  degree  of 
malice  constitutes  the  true  principle  upon  which 
the  distinction  between  oral  and  written  slander  is 
founded.  The  two  essentials  to  an  action  are,  as 
has  already  been  observed,  the  loss  to  the  plaintiff 
and  the  wrongful  act  of  the  defendant ;  the  latter  of 
which  requisites  in  an  action  for  slander,  consists  in 
the  malicious  motive  by  which  the  defendant  was 
actuated  in  making  the  communication.  The  de- 
gree of  malice  does  not,  however,  seem  in  any  case 
to  form  a  subject  of  inquiry  ;  its  existence  is,  indeed, 
an  essential  requisite  to  the  maintaining  of  an  ac- 
tion ;  but  if  it  exist  at  all,  the  legal  condition  is  sa- 
tisfied, and  the  only  question  which  remains,  re- 
lates to  the  loss  sustained.(l) 

Secondly,  The  increased  detriment  to  the  party 

*  4  Bac.  Ab.  449.  5  Co.  125.  Ld.  Ray,  416.  12  Mod.  219. 
(1)  See  2  Binn.  517.     Opinion  of  Brackenrid%e,  J. 


125 

from  the  wider  circulation  and  longer  continuance 
of  the  slander,  seems  scarcely  to  warrant  the  dis- 
tinction as  to  the  legal  quality  of  these  two  kinds 
of  slander.  It  is  true  that  the  prejudice  from  slan- 
der, communicated  by  means  of  printing  or  writ- 
ing, may  be  more  widely  diffused,  may  operate 
longer,  than  mere  oral  slander,  and  may  also  be 
considered  as  of  more  weight  and  authority,  from 
the  presumption,  that,  unless  well  founded,  it  would 
not  have  been  circulated  in  so  deliberate  a  mode  : 
these,  however  are  circumstances  which  rather  af- 
fect the  quantum  of  damages,  than  furnish  a  dis- 
tinction as  to  the  relevancy  of  an  action  in  such 
cases. 

If  it  be  supposed,  for  example's  sake,  that  a  re- 
port to  a  man's  discredit,  from  the  circumstance  of 
its  being  propagated  in  a  public  print,  obtains  a 
circulation  greater  by  ninety-nine  times,  than  it 
would  have  done,  had  it  been  conveyed  merely  by 
wrord  of  mouth,  and  that  the  damage  sustained  is  in 
proportion  to  the  extent  of  circulation,  the  distinc- 
tion between  the  two  modes  of  communication 
would  be  a  very  good  reason  why  a  jury  should 
give  one  hundred  pounds  damages  in  the  former 
case,  and  but  one  in  the  latter ;  but  forms  no 
ground  for  denying  a  remedy  in  the  latter  case  al- 
together ;  if  in  the  former  case  any  legal  damage 
has  been  sustained,  a  damage  of  the  same  nature 
has  likewise  been  suffered  in  the  latter,  though  but 
to  one-hundredth  part  of  the  amount,  and  therefore 
a  proportional  remedy  is  called  for :  if,  on  the  other 
hand,  no  legal  damage  has  been  sustained  in  the 
latter  case,  it  cannot  be  converted  into  such  by  a 
wider  diffusion,  which  leaves  its   legal  nature  and 


i°2y 

essence  wholly  unaltered,  and  therefore  il"  an  action- 
able damage  does  not  exist  in  the  latter  case,  nei- 
ther does  it  in  the  former.  And  this  mode  of  rea- 
soning seems  equally  to  apply  to  the  increased 
detriment  arising  from  the  longer  operation  of  the 
slander,  and  the  stronger  impression  it  is  calculated 
to  make,  from  the  mode  in  which  it  is  communicated, 
since  these  circumstances  alter  not  the  nature  of 
the  mischief,  but  its  magnitude  only. 

It  may  be  further  observed,  that  when  an  indivi- 
dual's reputation  is  wounded,  the  scandal  is  for  the 
most  part  confined  to  the  neighbourhood,  with 
which  he  is  connected  by  habits  of  friendship  or  of 
business ;  within  this  limited  sphere  verbal  detrac- 
tion is  easily  promulgated,  and  if  the  calumny  pre- 
vail there,  it  is  of  little  importance  to  the  sufferer 
what  opinion  may  have  been  formed  of  him  by  stran- 
gers. 

The  prejudice,  too,  must  depend  in  a  great 
measure  upon  the  intrinsic  nature  of  the  slander ; 
it  may  be  thought  by  many  a  much  more  serious 
matter  to  be  believed  capable  of  false  swearing, 
where  it  can  be  done  with  impunity,  or  of  secreting 
a  will  for  the  purpose  of  defrauding  relations,  than 
to  be  casually  held  up  to  ridicule  on  account  of  a 
natural  deformity,  or  an  habitual,  but  morally  speak- 
ing, harmless  eccentricity  of  manner. 

Thirdly,  The  danger  to  be  apprehended  to  the 
public  peace  does  not  appear  to  warrant  the  dis- 
tinction in  question,  though  it  may  strongly  dictate 
the  necessity  of  subjecting  the  authors  of  such  pub- 
lications to  the  correction  of  the  magistracy.(l) 


(1)  Per  Mansfield,  C  J.  4  Taunt.  Rep.  366. 
17 


A  question,  however,  of  this  nature  is  decided 
much  better  by  experience  than  by  any  arguments 
which  mere  theory  can  furnish  ;  in  the  present  in- 
stance, the  antiquity  of  the  distinction,  and  the 
frequent  approbation  which  it  has  received  from  the 
most  enlightened  lawyers,  constitute  a  very  strong 
and  convincing  argument  in  favour  of  its  practical 
utility. 

The  number  of  actual  decisions  founded  upon 
the  difference  between  oral  and  written  slander 
is  exceedingly  small ;  the  distinction  itself  has,  how- 
ever, been  very  frequently  collaterally  countenanced 
and  recognised  by  most  able  and  accomplished 
judges. 

It  appears  to  have  been  held  in  very  early  times, 
that  a  libel*  on  the  character  of  a  private  individual 
was  punishable  by  way  of  indictment. 

Sir  Edward  Coke,  in  his  third  Institute,!  cites 
a  record  of  the  conviction  of  Adam  de  Ravens- 
worth,  who  was  indicted  in  the  King's  Bench,  in 
the  reign  of  Edw.  III.  for  the  making  of  a  libel  in 
the  French  tongue  against  Richard  of  Snowshall, 
calling  him  therein,  Roy  de  Raveners,  &c.  and 
adds,  "  so  a  libeller,  or  a  publisher  of  libel,  com- 
mitteth  a  public  offence,  and  may  be  indicted  thereoT 
at  Common  Law." 

This,  indeed,  was  a  criminal  proceeding,  and  no 
instance  of  a  civil  action  in  case  of  libel  appears 
till  long  after;  it  seems,  however,  to  have  been  uni- 

*  The  term  Libel,  in  the  following  pages,  is  used  to  signify  any  writings, 
pictures,  or  other  signs,  tending  to  injure  the  character  of  an  individual,  or  to 
produce  public  disorder. 

+  74... 


1^1 

tormly  held,*  that  where  a  party  is  indictable  for  a 
written  publication,  an  action  is  also  maintainable  at 
the  suit  of  the  party  injured. 

In  the  case  of  Dr.  Edwards  v.  Dr.  Wootonf  in 
the  Star-chamber,  it  appeared  that  Dr.  Wooton  had 
written  to  Dr.  Edwards  a  letter  containing  scanda- 
lous matter,  to  which  he  had  subscribed  his  name, 
and  that  he  had  likewise  published  and  dispersed 
a  number  of  copies  of  the  same  letter.  And  it  was 
resolved  by  the  Lord  Chancellor  Egerton,  the 
two  Chief  Justices,  and  the  whole  court,  that  this 
was  a  subtle  and  dangerous  kind  of  libel,  inasmuch 
as  the  writing  a  private  letter  to  another  without 
other  publication,  would  not  support  an  action  on 
the  case, (I)  but  that  when  published  to  others,  to 
the  scandal  of  the  plaintiff,  as  it  had  oftentimes  been 
adjudged,  an  action  lieth.  And  it  was  said,  that 
although  the  defendant  had  subscribed  his  name  to 
the  letter,  yet  since  it  contained  scandalous  matter, 
it  was  to  be  considered  in  law  as  amounting  to  a 
libel.  From  this  case,  though  the  contents  of  the  let- 
ter in  question  do  not  appear,  the  opinion  of  the 
Lord  Chancellor  and  the  two  Chief  Justices  may 
be  collected  to  have  been,  that  generally,  scanda- 
lous matter  published  in  writing  was  a  ground  of 
action. 

Peacock}  exhibited  his  bill  against  Sir  George 
Raynal  in  the  Star-chamber,  for  a  libel  written  un- 
der these  circumstances  : 


*  Skinn.  123.  2  Wils.  204.  4  Com.  Dig.  tit.  Libel.  C.  3.  6  Bac.  Ab.  tit.  Slan- 
der, 202.  3BI.  Comm.  125.  2  Camp.  R.  511. 
1 12  Rep.  35.  |  2  Brownl.  151. 


(1)  JLyky,  Clason,  1  Caines's  Rep.  581. 


132 

The  plaintiff' was  heir  general  to  Richard  Peacock, 
who  was  of  the  age  of  S6  years,  and  had  lands  of 
inheritance  to  the  value  of  800/.  a  year  ;  the  defend- 
ant, who  had  married  the  daughter  of  Sir  Edward 
Peacock,  who  was  a  younger  brother  of  Richard 
Peacock,  wrote  a  letter  to  Richard  Peacock,  inform- 
ing him,  that  the  plaintiff'  was  not  the  son  of  a  Pea- 
cock, and  was  a  haunter  of  taverns,  and  that  divers 
women  had  followed  him  from  London  to  the  place 
of  his  dwelling,  and  that  he  had  desire  to  hear  of  the 
death  of  the  said  Richard,  and  that  all  the  inheritance 
would  not  be  sufficient  to  satisfy  his  debts,  and  many 
other  matters  concerning  his  reputation  and  credit. 
And  it  was  agreed  that  this  was  a  libel,  and  for  that 
the  defendant  was  fined  to  200/.  and  imprisonment, 
according  to  the  course  of  the  court ;  and  the  plain- 
tiff* let  loose  to  the  Common  Law  for  his  recompense 
for  the  damages  which  he  had  sustained. 

In  the  case  of  King  v.  Sir  Edward  Lake,*  the 
libel  was  contained  in  an  answer  to  a  petition  pre- 
ferred by  the  plaintiff  to  the  House  of  Commons, 
and  consisted  of  many  general  reflections  upon  the 
conduct  of  the  plaintiff.     After  verdict  for  the  plain- 
tiff, it  was  moved  in  arrest  of  judgment,  that  the 
terms  of  the  publication  were  too  general  to  support 
an  action  ;  but  it  was  said  by  Hale,  Chief  Baron, 
that  "  Although  such  general  words  spoken  once, 
without  ivrit'mg  or  publishing  them,  would  not  be  ac- 
tionable, yet  here  they  being  written  and  published, 
which  contains  more  malice  than  if  they  had  been 
once  spoken,  they  are  actionable. 

In  the  case  of  Sir  J.  Austen  v.  Col.  Culpepper,f 

*  Hardr.  47ff.  t  Skinner,  123.  2  Show.  314. 


133 

the  defendant  had  forged  an  order  of  the  Court  ot 
Chancery,  containing  many  defamatory  reflections 
upon  the  plaintiff,  and  at  the  bottom  had  drawn  the 
form  of  a  pillory,  and  subscribed  to  it  the  words 
"For  Sir  J.  Austen  and  his  witnesses  by  him  sub- 
orned." 

It  was  contended  that  the  action  was  not  main- 
tainable, since  no  certain  slander  was  imputed  by 
the  words,  and  that  if  the  words  would  not  support 
the  action,  the  representation  could  not,  since  it  was 
not  to  be  inferred  that  the  parties  were  perjured, 
and  that  though  for  setting  up  horns,  &c.  for  the 
purpose  of  ridicule,  an  indictment  lay,  yet  that  no 
action  was  maintainable ;  but  the  court  held  that 
an  action  in  such  cases  was  maintainable,  as  well  as 
an  indictment,  and  referred  to  the  case  of  Col.  King 
v.  Lake,*  where  the  plaintiff  had  judgment  in  the 
Exchequer.  And  the  court  added,  that  to  say  of 
any  one  that  he  is  a  dishonest  man,  would  not  be 
actionable ;  but  that  to  publish  it  or  put  it  on  the 
posts  would  be  actionable,  and  the  plaintiff  had 
judgment. 

In  the  case  of  Cropp  v.  Tilney,f  it  was  said  by 
Holt,  C.  J.  "  Scandalous  matter  is  not  necessary  to 
make  a  libel,  it  is  enough  if  the  defendant  induce  an 
ill  opinion  to  be  had  of  the  plaintiff,  or  make  him 
contemptible  and  ridiculous  ;  as  for  instance,  an  ac- 
tion was  brought  by  the  husband  for  riding  Skim- 
mingtont  and  adjudged  that  it  lay,  because  it  made 
him  ridiculous  and  exposed  him." 

In  Bradley  v.  Methwyn,||  which  was  an  action  on 

*  Hardr.  470.  t  3  Salk.  226. 

X  Mason  v.  Jennings,  SirT.  Ray,  401.  contra.     Sed  vid.  2  Show.  314. 

II  Selwyn's  Ni.  Pri.  1st  Ed,  925.  n.  2.  B.  R.  M.  10  G.  II.  MSS. 


134 

the  case  for  a  libel,  Lord  Hardvvicke,  C.  J.  observed , 
that  "  The  present  case  is  not  for  words,  but  for  a 
libel,  in  which  the  rule  is  different ;  for  some  words 
may  be  actionable,  or  prosecuted  by  way  of  indict- 
ment, which  would  not  be  so  if  spoken  only ;  for 
the  crime  in  a  libel  does  not  arise  merely  from  the 
scandal,  but  from  the  tendency  which  it  has  to  oc- 
casion a  breach  of  the  peace,  by  making  the  scandal 
more  public  and  lasting,  and  spreading  it  abroad, 
which  was  determined  in  this  court  in  the  case  of 
King  v.  Griffin."   Hil.  7.  G.  II. 

In  Villers  v.  Monsley,*  the  libel  charged  the 
plaintiff  with  having  the  itch :  upon  motion  in  arrest 
of  judgment,  Wilmot,  C.  J.  observed,  "  If  any  man 
deliberately,  or  maliciously,  publish  any  thing  in 
writing  concerning  another  which  renders  him  ridi- 
culous, or  tends  to  hinder  mankind  from  associating 
or  having  intercourse  with  him,  an  action  well  lies 
against  such  publisher." 

Bathurst,  J.  "I  wish  this  matter  was  thoroughly 
gone  into  and  more  solemnly  determined;  how- 
ever, I  have  no  doubt  at  present,  but  that  the 
writing  or  publishing  any  thing  which  renders  a 
man  ridiculous,  is  actionable.  I  repeat  it,  I  wish 
there  were  some  more  solemn  determination  that 
the  writing  and  publishing  any  thing  which  tends 
to  make  a  man  ridiculous  or  infamous,  ought  to  be 
punished." 

Gould,  J.  "  What  my  brother  Bathurst  has  said 
is  very  material ;  there  is  a  distinction  between  li- 
bels and  words  :  a  libel  is  punishable  both  criminally 
and  by  action,  when  speaking  the  words  would  not 
be  punishable  either  way  ;  for  speaking  the  words 

*  2  Wils.  403. 


165 

rogue  and  rascal  of  any  one,  an  action  will  not  lie, 
but  if  those  words  were  written  and  published  of 
any  one,  I  doubt  not  an  action  will  lie.  I  think  the 
publishing  any  thing  of  a  man  that  renders  him  ridi- 
culous, is  a  libel,  and  actionable."  And  judgment 
was  given  for  the  plaintiff  by  the  whole  court, 
without  granting  any  rule  to  show  cause. 

In  J.  Anson  v.  Stuart*  the  action  was  brought 
in  the  Common  Pleas,  for  publishing  in  the  Morn- 
ing Post,  that  "  The  plaintiff  was  at  the  head  of  a 
gang  of  swindlers,  a  common  informer,  and  had 
been  guilty  of  deceiving  and  defrauding  divers  per- 
sons with  whom  he  had  dealings  and  transactions." 
The  plaintiff  demurred  specially  on  account  of  the 
generality  of  the  defendant's  plea,  and  judgment 
having  been  given  for  the  defendant  below,  the 
plaintiff  carried  the  matter  by  writ  of  error  into  the 
Court  of  King's  Bench,  where  the  same  causes  were 
assigned  for  error,  which  before  had  been  alleged 
as  grounds  of  special  demurrer. 

The  defendant  further  contended,  that  the  decla- 
ration was  insufficient,  since  the  words  "  common 
informer"  were  not  actionable,  and  the  term  "  swin- 
dler "  was  not  a  legal  term,  of  which  the  law  could 
take  notice.  But  Buller,  J.  observed,  "  The  ob- 
jection afterward  taken  to  the  declaration  is,  that 
the  term  '  swindler'  is  too  general,  and  cannot  be 
legally  understood ;  but  Mr.  J.  Aston  formerly  held 
otherwise  ;  for  he  said  that  the  term  swindling  was 
in  general  use,  and  that  the  court  could  not  say  they 
were  ignorant  of  it.  But  at  all  events  we  cannot 
say  upon  this  record,  that  we  do  not  understand  the 
import  of  it,  for  it  is  explained  to  be  '  defrauding 

*  1  T.  R.  74S, 


136 

divers  persons.5  The  declaration  contains  as  libel- 
lous a  charge  as  can  be  well  imagined." 

This  case  cannot  be  considered  as  decided  upon 
the  distinction  in  question,  since  it  seems  to  have 
been  the  opinion  of  Mr.  J.  Buller,  that  the  term 
"  swindler,"  as  explained  by  the  subsequent  words, 
was  actionable  without  reference  to  the  mode  of 
publication.* 

Zenobio  brought  an  action  against  Axtellf  for 
publishing  in  the  newspaper  called  the  Courier  de 
Londres,  the  following  paragraph — "  The  late  fa- 
mous Bishop  of  Autun,  to  the  great  satisfaction  of 
all  honest  men,  has  just  received  an  order  to  quit 
England :  the  same  compliment  has  been  paid  to  an 
adventurer,  a  great  gambler,  who  calls  himself  the 
count  Zenobio."  After  verdict  for  the  plaintiff,  the 
defendant  contended,  in  arrest  of  judgment,  that  the 
publication  was  not  libellous  ;  since,  however,  there 
was  another  objection,  which  was  fatal  to  the  de- 
claration, the  court  did  not  give  any  opinion  as  to 
the  actionable  quality  of  the  words. 

In  Bell  v.  Stone,  t  the  defendant  wrote  the  follow- 
ing letter  concerning  the  plaintiff,  who  was  a  land- 
surveyor,  to  one  N.  B.  to  whom  the  plaintiff  owed 
a  large  sum  of  money  : 

"  After  the  communication  I  had  with  your  son 
in  your  absence,  I  but  little  thought  you  would  have 
been  made  the  dupe  of  one  of  the  most  infernal  vil- 
lains that  ever  disgraced  human  nature  ;  but  I  sup- 
pose you  were  deceived  by  those  whom  you  thought 
well  of,  and  whom  he  will  deceive  if  they  will  give 

*  In  Savile  v.  Jardine,  2  II.  Bl.  531.  it  was  held  that  the  term  "  swindler" 
was  not  actionable. 

t  6T.  R.  162.  1  1  Bos.  and  Pul.  331. 


137 

him  an  opportunity ;  I  am  told  they  are  respect 
able,  and  how  they  can  be  connected  with  him  is 
the  most  astonishing  thing  to  me.  Mr.  H.  writes 
me  you  called  upon  him  (meaning  the  plaintiff")  on 
the  subject  of  your  account,  for  which  the  villain 
gave  you  his  note  at  five  months."  Special  damage 
was  laid  in  the  declaration,  but  none  being  proved 
at  the  trial,  the  learned  Judge  who  tried  the  cause 
was  of  opinion  that  the  letter,  unsupported  by  spe- 
cial damage,  was  not  actionable,  and  directed  a  ver- 
dict for  the  defendant.  The  counsel  for  the  plain- 
tiff, however,  contending  that  the  letter  itself  was 
actionable,  it  was  left  to  the  jury  to  say  what  dama- 
ges they  would  give,  supposing  the  plaintiff  entitled 
to  recover,  and  they  answered,  one  shilling.  A  rule 
was  obtained  to  show  cause  why  the  verdict  for  the 
defendant  should  not  be  set  aside,  and  a  verdict  en- 
tered for  the  plaintiff,  on  the  count  containing  tHe 
letter,  for  one  shilling,  on  the  ground  that  though 
the  words  in  that  count  might  not  be  actionable  if 
only  spoken,  yet  that  being  committed  to  writing 
they  were  so* 

Serg.  Le  Blanc  was  to  have  shown  cause  against 
the  rule ;  but  the  court  expressing  themselves 
clearly  of  opinion,  that  any  words  written  and  pub- 
lished, throwing  contumely  on  the  party,  were  action- 
able, the  learned  counsel  declined  arguing  the  point, 
and  the  rule  was  made  absolute. 

After  these  authorities  it  can  scarcely  be  consi- 
dered as  matter  of  doubt,  whether  the  distinction 
between  verbal  and  written  slander  is  a  legal  and 
subsisting  distinction  ;  in  some  of  the  cases  cited* 
the  point  was  expressly  determined,  and  in  the 

others  the  language  of  the  judges  has  been  con* 

18 


I3S 

stantly  the  same,  recognising  the  doctrine  in  a  va- 
riety of  collateral  shapes.  The  very  scarcity  of  ex- 
press decisions  upon  this  subject,  may,  perhaps,  be 
attributed  to  the  absence  of  doubt  concerning  it, 
and  may,  therefore,  when  coupled  with  the  frequent 
approbation  which  the  distinction  has  met  with  from 
the  courts,  be  considered  as  very  strong  evidence 
in  support  of  its  early  establishment  and  subsequent 
prevalence.  (1) 

It  is  probable  that  in  early  times  there  wras  no 
difference,  as  far  as  concerned  civil  actions,  between 
verbal  and  written  slander  ;  no  distinction  is  made 
between  them  either  in  the  statutes  of  Scandalum 
Magnatum,  or  in  the  older  cases  relating  to  the  sub- 
ject, and  the  general  rule  appears  once  to  have 
been,  that  all  words  were  actionable  which  tended 
to  take  away  a  man's  reputation,*  without  regard  to 
the  mode  of  communication.  It  has  already  been 
seen  that  this  rule  was  soon  found  too  comprehen- 
sive, as  applied  to  actions  for  oral  slander,  and  that 
the  judges  accordingly  felt  themselves  under  the 
necessity  of  prescribing  some  restraints,  and  laying 
down  those  rules  of  limitation  from  time  to  time, 
which  are  to  be  found  in  the  preceding  chapters. 
It  may  not,  however,  be  unfair  to  suppose  that  the 
inconvenience,  and  therefore  the  necessity  of  limita- 

*  1  Bulst.  40.  Smiale  v.  Hammon,  ILlt,  R.  654.  6  Mod.  24.  Ld.  Ray.  05?. 
8  Mod.  24. 


(1)  The  law  is  well  settled  in  the  United  Slates.  Fan  Ness  v.  Hamilton,  ill 
Juhns.  Rep.  367.  M'Corkle  v.  Binns,  5  Binn.  340.  JV'ClltirgY.  Ross,  5  Binn. 
218.  Sir  James  Mansfield,  however,  said  in  a  late  case,  "  if  the  matter  were 
10  be  decided  at  this  day,  I  should  have  no  hesitation  in  saying,  that  no  action 
could  be  maintained  for  the  words  if  they  had  been  spoken."  Thwlcy  v.  tffl 
Ketfy,  4  Taunt.  Rep.  36G,     Set  Robmsbn  v,  tertiton,  1  Price,  1" 


139 

lion,  did  not  extend  itself  to  the  ease  of  written 
slander,  in  respect  of  which  the  old  rule,  therefore, 
remained  unaltered.  The  number  of  actions  brought 
for  the  publication  of  written  slander,  must,  in  early 
times,  have  been  comparatively  small,  on  account 
of  the  limited  number  of  those  whose  education 
enabled  them  so  to  offend  ;  it  is,  therefore,  impro- 
bable that  the  courts  would  deem  it  necessary  to 
impose  new  restraints  respecting  them,  though  the 
overwhelming  increase  of  actions  for  trivial  words 
spoken,  might  render  their  limitation  unavoidable. 

Perhaps  this  conjecture  as  to  the  origin  of  the 
distinction  in  question,  may  receive  some  support 
and  colour  from  the  consideration,  that  the  statute  * 
limiting  the  amount  of  costs  (in  actions  for  slander- 
ous words)  to  the  quantum  of  damages,  where  they 
do  not  amount  to  40  shillings,  and  which  was  passed 
for  the  purpose  of  repressing  actions  brought  for 
trivial  slander,!  does  not  extend  to  written  slander, 
a  circumstance  which  strongly  tends  to  show  that 
actions  for  injuries  of  the  latter  description,  did  not 
call  for  the  interference,  or  fall  within  the  contem- 
plation of  the  legislature. 

The  authorities  already  cited  leave  little  to  be 
said  in  relation  to  the  extent  of  the  action  for  slander 
communicated  by  means  of  writing,  printing,  pic- 
tures, or  other  signs. 

According  to  Lord  Coke,}  every  infamous  libel  is 
either  in  ivriting  or  without  writing.  A  scandalous 
libel  in  writing  is,  when  an  epigram,  rhyme,  or  other 
writing,  is  composed  or  published  to  the  scandal  or 

*  21  J.  1.  c.  16. 
Tidd's  Practice,  4th  Ed.  861.     Hall  v.  Warner,  Trin.  24  G.  TIT. 
5  Rep.  125 


140 

contumely  of  another,  by  which  his  tame  or  dignity 
maybe  prejudiced. 

The  libel  without  writing  may  be, 

1st.  By  pictures,  as  to  paint  the  party  in  any 
shameful  or  ignominious  manner. 

2dly.  By  signs,  as  to  fix  a  gallows,  or  other  re- 
proachful or  ignominious  signs,  at  the  party's  door, 
or  elsewhere. 

Upon  the  whole,  it  may  be  collected,  that  any 
writings,  pictures,  or  signs,  which  derogate  from 
the  character  of  an  individual,  by  imputing  to  him 
either  bad  actions  or  vicious  principles,  or  which 
diminish  his  respectability  and  abridge  his  comforts, 
by  exposing  him  to  disgrace  and  ridicule,  are  ac- 
tionable, without  proof  of  special  damage  ;  in  short, 
that  an  action  lies  for  any  false,  malicious,  and  per- 
sonal imputation,  effected  by  such  means,  and  tend- 
ing to  cdter  the  party's  situation  in  society  for  the 
worse. 

This  rule,  though  apparently  very  wide  and  com- 
prehensive, cannot  be  considered  as  more  extensive 
than  the  justice  of  the  case  demands.  No  man,  ab- 
stractedly, has  a  right  to  lessen  the  comforts  or  en- 
joyments of  another ;  and  when  he  does  it  deli- 
berately, wantonly,  and  maliciously,  it  would  be 
an  insult  to  common  sense  to  contend,  that  he  is 
not  bound,  upon  the  plainest  grounds  of  policy  and 
justice,  to  make  compensation  for  the  mischief  so 
occasioned :  and  no  inconvenience  can  result  from 
the  extent  of  the  rule :  it  must  be  recollected,  that 

(1)  See  the  definition  M'Corkle  v.  Binns,  5  Binn.  340.  Steele  v.  Southwick,  9 
Johns.  Rep.  315.  and  in  the  cases  there  cited.  It  has  been  held  that  to  send  a 
wooden  gun  to  an  officer  of  the  army,  with  a  view  to  reflect  on  his  courage,  is  a 
libel.  The  reader  will  find  an  account  of  the  case  in  Thicknesse's  Memoirs,  page 
828,    (Edit.  Dub   1790> 


141 

ihe  only  question  at  present  under  consideration  is, 
the  nature  of  the  damage  which  must  have  been 
sustained  to  render  words  actionable  :  this  damage 
is,  however,  but  one  of  two  essential  requisites  for 
the  supporting  an  action.  To  render  the  right 
complete,  such  damage  must  have  been  occasioned, 
as  will  afterward  be  seen,  by  the  malicious  act  of 
the  defendant.  This  further  requisite,  of  malice, 
precludes  litigation  in  all  cases  where  the  party  has 
acted  in  the  discharge  of  any  legal  or  moral  duty,  or 
in  the  fair  and  conscientious  performance  of  his  part 
in  any  transaction  arising  out  of  the  ordinary  busi- 
ness of  life,  without  a  deviation  for  malevolent  pur- 
poses, and  confines  the  action  to  those  instances  in 
which  the  mischief  is  attributable  to  mere  malice  of 
heart,  or  to  a  wanton  and  guilty  disregard  of  the 
feelings  and  interests  of  others. 

It  is  said,  by  the  learned  author  of  the  Commen- 
taries,* that,  "  as  to  signs  or  pictures,  it  seems  ne- 
cessary always  to  show,  by  proper  innuendoes  and 
averments  of  the  defendant's  meaning,  the  import 
and  application  of  the  scandal,  and  that  same  special 
damage  has  followed  ;  otherwise  it  cannot  appear 
that  such  libel  by  pictures  was  understood  to  be  le- 
velled at  the  plaintiff,  or  that  it  was  attended  with  any 
actionable  consequences."  It  seems,  however,  very 
difficult  to  conceive  any  sound  distinction  between 
written  and  painted  libels. 

A  man  may  be  as  successfully  exposed  to  ridicule 
by  a  caricature  painting,  as  by  any  written  misre- 
presentation ;  and  the  object  of  the  defendant  as 
clearly  manifested  in  the  latter  case,  as  the  former. 
The  difficulty,  indeed,  of  proving  the  plaintiff  to  be 

'■  ?,Bl.Com.  126. 


142 

the  person  aimed  at,  may,  in  some  instances,  be 
greater  in  the  latter  case ;  but  when  the  doubt  as 
to  the  defendant's  application  of  the  calumny  has 
been  overcome,  there  seems  to  be  no  room  for  fur- 
ther distinction. 

The  pencil  of  the  caricaturist  is  frequently  an 
instrument  of  ridicule  more  powerful  than  the  press  ; 
and  it  is  not  easy  to  conceive  an  imputation  which 
an  ingenious  artist  would  not  be  able  successfully 
to  communicate  to  minds  of  even  the  meanest  capa- 
city. A  picture  is  the  image  or  likeness  of  the 
scene  itself:  words  written  or  printed  are  merely 
symbols,  which,  by  virtue  of  a  previous  compact 
and  understanding  on  the  subject,  are  the  represen- 
tatives of  the  ideas  which  they  communicate  :  but 
in  legal  consideration,  the  only  question  is,  whether 
any  and  which  of  these  modes  is  capable  of  convey- 
ing that  meaning  which  is  detrimental  to  the  plain- 
tiff? If,  in  fact,  they  are  equally  capable  of  so  doing, 
equally  distributable,  and  equally  durable, — in  short, 
equally  mischievous  in  every  respect,  they  cannot  be 
considered  as  distinguishable,  for  any  legal  purpose, 
upon  any  principle  of  reason  and  good  sense  :  And 
no  such  distinction  is  to  be  found  in  the  reports.  It 
was  expressly  held  by  Holt  C.  J.  that  "  In  case 
upon  libel  it  is  sufficient  if  the  matter  be  reflecting  ;* 
as  to  paint  a  man  in  any  disgraceful  situation." 

The  plaintifff  brought  an  action  of  trespass 
against  the  defendant  for  destroying  a  picture  of 
the  plaintiffs.  Upon  the  trial  it  appeared  that  the 
picture  in  question,  entitled  La  Belle  et  La  Bete, 

*  11  Mod.  90.   Sec  also  2   Hawk.  pi.  C  c.  73.  s.   2,  5  Co.  125.   Skinner 
123.  3Keb.  373. 
t  Du  Bost  v.  Bcresford,  2  Camp.  Rep.  511. 


143 

was  a  caricature  representation  of  a  gentleman  and 
his  wife,  who  was  sister  to  the  defendant,  and  that 
it  had  been  publicly  exhibited  for  money  till  the  de- 
fendant cut  it  in  pieces.  The  plaintiff  insisted  that 
he  was  entitled  to  the  full  value  of  the  picture,  to- 
gether with  a  compensation  for  the  loss  of  the  ex- 
hibition. The  defendant  contended  that  it  was  a 
public  nuisance,  which  every  one  had  a  right  to 
abate  by  destroying  the  picture. 

Lord  Ellenborough  C.  J.  "  The  only  plea  upon 
the  record  being  the  general  issue  of  '  not  guilty,'  it 
is  unnecessary  to  consider  whether  the  destruction 
of  this  picture  might  or  might  not  have  been  justi- 
fied. If  it  was  a  libel  upon  the  persons  introduced 
into  it,  the  law  cannot  consider  it  valuable  as  a  pic- 
ture. Upon  an  application  to  the  Lord  Chancellor, 
he  would  have  granted  an  injunction  against  its  ex- 
hibition ;  and  the  plaintiff  was  both  civilly  and  cri- 
minally liable  for  having  exhibited  it."(i) 

There  remains  a  class  of  communications  differ- 
ing from  any  of  those  adverted  to,  and  which,  though 
accompanied  with  circumstances  of  cooler  delibe- 
ration and  more  settled  purpose  than  words  merely 
spoken,  are  not  calculated  to  produce  such  lasting 
and  widely  extended  consequences  as  those  effected 
by  writings  or  pictures. 

The  vulgar  custom  of  riding  Skimmington,  and 
the  practice  of  carrying  or  burning  the  effigies  of 


(1)  The  hasty  dlclum  of  Lord  Elknborcugh  is  not  the  doctrine  of  the  court 
of  Chancery  in  England.  The  court  does  not  interfere  to  prevent  or  restrain 
the  publication  of  libels,  or  of  works  of  such  a  nature  that  an  action  of  da- 
mages cannot  be  maintained  for  them.  Eden  on  Injunctions,  315.  Walcot  v 
fVtdeot,  7  Ves.  Jun.  1.  Southey  v.  Sherwood,  2  Meriv.  435.  Lord  Byron  v.  Dug- 
dale,  British  Traveller,  Newspaper,  Aug.  S,  1823.  See  also  the  Edinburgh  Re 
view,  No,  LXXVI,  for  May  1822,  paae  2S1. 


144 


persons  intended  to  be  held  out  as  public  objects 
of  disgrace  and  ridicule,  are  instances  of  this  de- 
scription. The  impressions  made  by  such  proceed- 
ings are  naturally  more  lasting,  and  are  likely  to 
produce  a  greater  degree  of  mischief  than  words 
merely  spoken,  and  yet  the  calumny  is  not  so  du- 
rable as  if  it  had  been  conveyed  in  print  or  in  wri- 
ting. Since,  however,  these  are  means  by  which  a 
man  may  be  rendered,  in  may  instances,  contemp- 
tible and  ridiculous,  and  in  others  may  be  exposed 
to  the  serious  effects  of  popular  indignation  and 
resentment, — since  the  act  of  the  defendant  is 
more  studied  and  deliberate,  and  the  consequences 
more  mischievous  than  those  for  mere  verbal  slander, 
it  is  probable  that  such  representations  would  be 
deemed  actionable,  as  falling  within  the  same  con* 
sideration  with  the  cases  which  have  formed  the 
subject  of  the  present  chapter. 


155 


CHAPTER  VI 


Of  Sca?idalum   Magnatum. 

Words  spoken  in  derogation  of  a  peer  or  judge, 
or  other  great  officer  of  the  realm,  are  usually  called 
Scandalum  Magnatum ;  and  though  they  be  such 
as  would  not  be  actionable  when  spoken  of  a  pri- 
vate person,  yet  when  applied  to  persons  of  high 
rank  and  dignity,  they  constitute  a  more  heinous  in- 
jury, which  is  redressed  by  an  action  on  the  case 
founded  on  many  ancient  statutes,  as  well  on  behalf 
of  the  crown,  to  inflict  the  punishment  of  imprison- 
ment on  the  slanderer,  as  on  the  behalf  of  the  party 
to  recover  damages  for  the  injury  sustained.* 

Under  this  division  will  be  considered, 

1.  The  grounds  of  the  action. 

2.  The  parties  entitled  to  maintain  it. 

3.  The  nature  of  the  words  which  will  sup- 
port it. 

The  statute  3  Ed.  1.  c.  34.  f  after  premising  that 
"  Forasmuch  as  there  have  been  oftentimes  found 
in  the  country  devisors  of  tales  whereby  discord,  or 
occasion  of  discord  hath  many  times  arisen  between 
the  king  and  his  people,  or  great  men  of  the  realm," 
enacts,  "  that  from  henceforth  none  be  so  hardy  to 


*  3  Blac.  Comm.  123. 

t  For  the  history  of  these  statutes,  see  2  Mod.  152.  Barrington  on  the  Penal 
Statutes.     3  Reeves.  Hist,  and  1  PaYl.  Hist. 

19 


14G 

tell  or  publish  any  false  news  or  tales,  wherebv 
discord,  or  occasion  of  discord,  or  slander,  may 
grow  between  the  king  and  his  people  or  the  great 
men  of  the  realm ;  and  he  that  doth  so,  shall  be 
taken  and  kept  in,  until  he  hath  brought  him  into 
court  which  was  the  first  author  of  the  tale. 

By  2  R.  2.  st.  1.  c.  5.  "  Of  devisors  oi  false  news 
and  of  horrible  and  false  lies,  of  prelates,  dukes, 
earls,  barons,  and  other  nobles  and  great  men  of  the 
realm ;  and  also  of  the  chancellor,  treasurer,  clerk 
of  the  privy  seal,  steward  of  the  king's  house,  jus- 
tices of  the  one  bench  or  of  the  other,  and  of  other 
great  officers  of  the  realm,  of  things  which  by  the 
said  prelates,  lords,  nobles,  and  officers  aforesaid, 
were  never  spoken,  done,  nor  thought,  in  great 
slander  of  the  said  prelates,  lords,  nobles,  and  offi- 
cers, whereby  debates  and  discords  might  arise  be- 
twixt the  said  lords,  or  between  the  lords  and  com- 
mons (which  God  forbid,)  and  whereof  great  peril 
and  mischief  might  come  to  all  the  realm,  and  quick 
subversion  and  destruction  of  the  said  realm,  if  due 
remedy  be  not  provided.  It  is  straitly  defended 
upon  grievous  pain,  for  to  eschew  the  said  damages 
and  perils,  that  from  henceforth  none  be  so  hardy 
to  devise,  speak,  or  to  tell  any  false  news,  lies,  or 
other  such  false  things,  of  prelates,  lords,  and  of 
others  aforesaid,  whereof  discord  or  any  slander 
might  rise  within  the  said  realm  ;  and  he  that  doth 
the  same  shall  incur  and  have  the  pain  another  time 
ordained  thereof  by  the  statute  of  Westminster 
the  first,  which  will,  that  he  be  taken  and  imprison- 
ed till  he  have  found  him  of  whom  the  word  was 


moved 


i  v 


147 

Also  by  the  12  R.  2.  c.  11. — '-Item.     Whereas 
it  is  contained  as  well  in  the    statute    of  Westmin- 
ster the  first,  as  the  statute  made  at  Gloucester,  the 
second  year  of  the  reign  of  our  lord  the  king  that 
now  is,  that  none  be  so  hardy  to  invent,  to  say,  or 
to   tell   any  false   news,  lies,   or  such  other  false 
things,   of  the  prelates,   dukes,  earls,  barons,  and 
other  nobles  and  great  men  of  the  realm,  and  also 
of  the  chancellor,  treasurer,  clerk  of  the  privy  seal, 
and  steward  of  the  king's  house,  the  justices  of  the 
one  bench  or  of  the  other,  and  other  great  officers 
of  the  realm ;  and  he  that  doth  so  shall  be  taken 
and  imprisoned  till  he  hath  found  him  of  whom  the 
speech  shall  be  moved.     It  is  accorded  and  agreed 
in  this  parliament,  that  when  any  such  is  taken  and 
imprisoned,   and  cannot    find    him  by   whom  the 
speech  be  moved,  as  before  is   said,  that  he  be 
punished  by  the   advice   of  the  council,   notwith- 
standing the  said  statutes." 

It  does  not  appear  very  clear,  whether,  before 
these  statutes,  any  words  would  be  held  actionable 
when  applied  to  a  peer  or  other  person  of  high  rank 
and  dignity  which  would  not  have  been  deemed  so 
in  the  case  of  a  private  person.* 

In  the  case  of  Lord  Townsend  v.  Dr.  Hughes,! 
the  words  were,  "  He  is  an  unworthy  man,  and 
acts  against  law  and  reason  ;"  and  Scroggs  and  At- 
kins justices  were  of  opinion,  that  by  the  Common 
Law  no  action  would  lie,  though  such  words  were 
spoken  of  a  peer ;  but  North  C.  J.  considered  the 
words  as  actionable  at  Common  Law ;  and  held, 
that  no  words  would  be  actionable  under  the  statute 
which  were  not  so  at  Common  Law. 

*  See  Buller.  L.  N.  P.  4.  and  12  Co.  133.  1  2  Mod.  15a 


148 

Whether  such  a  distinction  prevailed  or  not  at 
Common"  Law,  is  at  present  a  matter  of  curiosity 
rather  than  of  practical  importance,  since  it  has 
been  established  by  a  long  train  of  decisions,  that 
the  distinction,  if  not  created,  has  at  all  events  been 
considered  as  warranted,  by  the  operation  of  the 
statutes  alluded  to. 

Upon  these  it  has  been  held,  that  a  remedy  by 
action  has  been  given  to  the  great  men  of  the 
realm,  entitling  them  to  a  compensation  in  damages 
for  injurious  reflections  upon  their  character,  though 
the  statutes  themselves  do  not  in  express  terms 
profess  to  bestow  such  a  remedy.  And  this  doc- 
trine is  founded  upon  the  general  rule,  that  when- 
ever* a  party  is  prejudiced  by  the  doing  of  that 
which  is  prohibited  by  statute,  he  is  entitled  to  da- 
mages. It  is  a  remarkable  circumstance,  that  from 
the  time  of  passing  the  st.  12  Rich.  II.  no  civil  action 
appears  from  the  reports  to  have  been  founded  upon 
it  before  the  thirteenth  year  of  Henry  the  Se- 
venth,! comprising  an  interval  of  more  than  a 
century. 

2.  Next  as  to  the  parties  entitled  to  maintain  this 
action. 

Since  the  statute  2  R.  II.  st.  I.e.  5.  commences 
with  an  enumeration  of  persons  inferior  in  rank  to 
the  king,  it  has  been  held,  that  the  latter  is  not 
included  within  the  general  words,  j  "  and  great  men 
of  the  realm."  But  that  he  is  included  within  the 
first  of  Westminster. |[ 

*  Keil.  26.  t  Ld.  Towr,?erul  v.  Dr.  Hughes,  2  Mod.  1C2.  10  Co.  75. 

X  Cromp.  Jur.  16.  35.  6  Bac.  Ab.  97. 12  Co.  133. 
fl  12  Rep.  133. 


149 

The  action  has  been  adjudged  to  extend  to  orders 
of  nobility  created  since  the  making  of  these  sta- 
tutes ;  so  that  although  the  stat.  2.  R  II.  specifically 
mentions  Dukes.  Earls,  and  Barons  only,  a  Viscount 
has  been  considered  as  entitled  to  the  action,* 
though  the  title  is  of  much  later  creation. f 

It  has  been  said,$  that  a  female,  noble  by  birth,  is 
not  within  the  statute  ;  but  it  seems  difficult  to  say 
upon  what  principle  a  peeress  is  excluded  from  the 
benefit  of  this  statutable  protection. 

Since  the  words  derive  their  actionable  essence 
from  their  application  to  the  dignataries  specified  in 
the  statute,  it  must  appear  that  the  plaintiff  held 
his  rank  at  the  time  the  words  were  published. || 

By  the  act  of  union  with  Scotland, §  is  enacted, 
that  all  peers  of  Scotland  shall  also  be  peers  of 
Great  Britain,  and  enjoy  all  privileges  as  fully  as 
peers  of  England,  except  of  sitting  in  the  house  of 
lords  and  the  privileges  depending  thereon.  Under 
this  clause  it  has  been  determined,  that  a  peer  of 
Scotland  is  one  of  the  magnates  to  whom  this  sta- 
tute extends  ;if  and  it  was  said,  that  though  it  had 
been  customary  in  such  action  to  aver  that  the 
plaintiff  had  a  vote  and  seat  in  parliament,  such  an 
averment  was  superfluous. 

It  seems  that  the  action  is  maintainable  by  a  Ba- 
ron of  the  Exchequer,**  though  the  statute  men- 
tions only  Justices  of  the  one  bench  or  the  other. 

3.  What  words  will  support  the  action. 

*  Cro.  Car.136.  Palm.  165. 

f  John  Beaumont,  the  first  Viscount,  was  created  such  18  H.  VI. 
|  Crom.  Jur.  35.  6  Bac.  Ab.  97.  ||  Vent.  CO. 

§  5  Ann.  c.  8.  Art.  23. 

IT  Lord  Falkland  v.  Phipps,  Comyn.  Rep.  439.  1  Vin.  Ab.  549.  pi.  22. 
**  Vid.Pal.  565.  12  Co.  133. 


150 

The  grounds  of  the  action  and  the  effect  of  these 
statutes,  underwent  much  learned  discussion  in  the 
case  of  Lord  Townsend  v.  Dr.  Hughes,*  which  has 
been  already  referred  to.     The   action  was  there 
brought  for  speaking  the  words,  "  He  is  an  unwor- 
thy man,  and  acts  against  law  and  reason."     Upon, 
not  guilty  pleaded,  the   cause  was  tried,  and  the 
jury  gave  4000/.  damages.     Upon  motion  in  arrest 
of  judgment,  Sergeant  Maynard,  for  the  defendant, 
allowed  that  it  was  too  late  to  contend   that  an  ac- 
tion to  recover  damages  was  not  maintainable  under 
the   statutes  of   Scandalum   Magnatum,  upon  the 
principle  before  mentioned,  that  where  a   statute 
prohibits  a  thing  prejudicial  to  another,  the  person 
prejudiced  is  entitled  to  recover  damages ;  but  he 
insisted  that  the  words  were  not  within  the  mean- 
ing of  the  acts :  because,   the  term  unworthy  im- 
ported no  particular  crime, — that  it  was  merely  a 
term  of  comparison,  and  that  instances  of  unwor- 
thiness  might  be  alleged  which  would  not  support 
an  action ;  but  that,  if  the  plaintiff  had  been  com- 
pared to  any  base  and  unworthy  thing,  the  words 
would  have  been  actionable :  as  in  the  Marquis  of 
Dorchester's  case,f  of  whom  the  defendant  said, 
"  There  is  no   more  value  in  him  than  in  a  dog." 
That  to  say  a  man  acts  against  law  and  reason,  is 
no  scandal ;  a  man  who  buries  one  of  his  family  in 
linen  acts  against  law,  but  that,  if  the  penalty  be 
satisfied,  the  law  is  so  too.     That  no  instance  was 
given  in  which  the  plaintiff  had  acted  against  law, 
and  therefore  that  the  case  was  unlike  the  Duke 
of  Buckingham's^  who  brought  an  action  for  the 

•  3  Mod.  150.         +  Crom.  Jur.  of  Courts.         I  Hil.  16  C  2.  Roll.  1269. 


151 

words,  "  You  are  used  to  do  things  against  iavv , 
and  put  cattle  into  a  castle  where  they  cannot  be  re- 
plevied ; "  for  in  that  case,  not  only  a  usage  was 
charged  upon  him,  but  a  particular  instance  of  op- 
pression. That  the  words  in  question  were  unci- 
vil, but  not'  actionable, — that  there  were  many 
authorities  which  showed  a  peer  not  entitled  to  an 
action  for  every  trivial  and  slight  expression  spoken 
of  him.  As  to  say  of  a  peer,  "  He  keeps  none  but 
rogues  and  rascals  about  him,*  iike  himself ;"  which 
words,  in  the  opinion  of  Yelverton  and  Fleming, 
Justices,  were  not  actionable. 

That  the  statute  was  made  to  punish  those  who 
devised  "  false  news,  and  horrible  and  false  lies  of 
any  peer,"  &c.  whereby  discords  might  arise  be- 
tween the  lords  and  commons,  and  great  peril  and 
mischief  to  the  realm,  and  quick  subversion  there- 
of. But  that  it  could  not  be  contended  under  the 
fair  construction  and  intent  of  the  act,  that  if  one 
should  say,  "  Such  a  peer  is  an  unworthy  man,"  the 
kingdom  would  be  presently  in  a  flame,  and  turned 
into  a  state  of  confusion  and  civil  war  ;  or,  that  the 
state  would  be  endangered  by  saying  of  a  peer,  "  he 
acts  against  the  law."  That  the  plaintiff  was  placed 
in  no  hazard  by  the  words,  nor  in  any  wise  damni- 
fied ;  he  was  not  touched  in  his  loyalty  as  a  peer, 
nor  in  danger  of  his  life  as  a  subject ;  he  was  not 
thereby  subjected  to  any  corporeal  or  pecuniary 
punishment,  nor  charged  with  any  breach  of  oath, 
nor  any  miscarriage  in  office. 

It  was  answered  by  Pemberton,  Serg.  that  it  was 
the  end  and  object  of  these  statutes  to  give  a  re- 
medy against   all    provoking   and   vilifying   words 

*  Earl  of  Lincoln's  case,  Cro>  J.  196. 


152 

which  were  used  before  to  exasperate  the  peerj»7 
and  to  make  them  betake  themselves  to  arms,  and 
to  carve  out  their  own  remedy  by  the  sword.  That 
since  the  design  of  the  statute  was  to  prevent  such 
practices,  not  only  those  words  were  to  be  consi- 
dered as  falling  within  their  scope,  -which  imported 
great  scandal,  and  for  which  an  action  lay  at  the 
common  law,  but  even  such  things  as  savoured  of 
any  contempt  of  their  persons,  and  such  as  brought 
them  into  disgrace  with  the  commons,  whereby 
they  took  occasion  of  prosecution  and  revenge. 
And  he  cited  Lord  Cromwell's  case,*  where  the 
words  were,  "  You  like  those  who  maintain  sedi- 
tion." The  Earl  of  Lincohi's  case,  "  My  lord  is  a 
base  Earl,  and  a  paltry  Earl,  and  keepeth  none  but 
rogues  and  rascals  like  himself." 

The  duke  of  Buckingham's  case,f  "  He  has  no 
more  conscience  than  a  dog." 

The  Marquis  of  Dorchester's  case,  "  He  is  no 
more  to  be  valued  than  the  black  dog  that  lies 
there." 

All  which  words  had  been  held  actionable,  though 
not  touching  the  persons  in  any  thing  concerning 
the  government,  nor  charging  them  with  any  crime, 
but  in  point  of  dignity  and  honour. 

Scroggs,  J.  observed,  that  "  the  words  here  laid 
are  not  so  bad  as  the  defendant  might  have  spoken, 
but  they  are  so  bad  that  an  action  will  lie  for  them ; 
and  though  they  are  general,  many  cases  mayl^e 
put  of  general  words  which  import  a  crime,  and 
which  have  been  adjudged  actionable." 

In  the  Earl  of  Leicester's  case,  "  He  is  an  op- 
pressor," were  held  actionable. 

*  4  Co.  13.  Cro.  J.  196.  t  HU.  16.  c.  2.  Roll.  1269. 


153 

And  in  Lord  Winchester's  case,  "  He  kept  me  in 
prison  till  I  gave  him  a  release,"  were  deemed  ac- 
tionable, because  the  plain  inference  from  them  is, 
that  he  was  an  oppressor. 

And  so,  in  Lord  Abergavenny's  case,  "  He  sent 
for  me,  and  put  me  in  Little  Ease."  It  appears  by 
all  these  cases,  that  the  Judges  have  always  con- 
strued in  favour  of  these  actions ;  and  this  has  been 
done  in  all  probability  to  prevent  those  dangers 
which  otherwise  might  ensue  if  the  lords  should 
take  revenge  themselves." 

Atkyns,  J.  held,  that  under  the  construction  of 
the  statute,  the  words  to  be  actionable  must  be  hor- 
rible as  well  as  false,  and  such  as  were  punishable 
in  the  high  commission  court,  which  were  enormous 
crimes.  That  the  statute  did  not  extend  to  words 
of  a  small  and  trivial  nature,  nor  to  all  words  which 
were  actionable,  but  only  to  such  as  were  of  a 
greater  magnitude,  such  by  which  discord  might 
arise  between  the  lords  and  commons,  to  the  great 
peril  of  the  realm,  and  such  which  are  great  slan- 
ders and  horrible  lies,  which  are  words  purposely- 
put  into  this  statute  for  the  aggravation  and  dis- 
tinction of  the  crime  ;  and,  therefore,  such  words  as 
were  actionable  at  the  common  law,  might  not  be  so 
within  this  statute,  because  not  horrible  great  scan- 
dals. The  learned  Judge  also  observed,  that  in  the 
Duke  of  Buckingham's  case,*  (which  was  the  se- 
cond which  appears  to  have  been  determined  in  an 
action  on  the  statute,)  where  the  defendant  said, 
"  You  have  no  more  conscience  than  a  dog ;"  and 
in  the  case  of  Lord  Abergavenny  v.  Cartwright, 

•  -1  Hen.  VIII.  Ci-omp.  Jur.  13. 
20 


151 

-  You  pare  not  how  you  come  by  goods,"  the 
words  charged  the  plaintiff  with  particular  matter, 
and  did  not  rest  barely  upon  opinion. 

That  in  the  case  of  the  Bishop  of  Norwich,*  the 
words,  "  You  have  writ  to  me  that  which  is  against 
the  word  of  God,  and  to  the  maintenance  of  super- 
stition," were  held  actionable,  because  they  refer  to 
his  function,  and  greatly  defame  him.  That  in  the 
case  of  Lord  Mordaunt  v.  Bridges,!  the  words 
"  My  Lord  Mordaunt  did  know  that  Prude  robbed 
Shotbolt,  and  bade  me  compound  with  Shotbolt  for 
the  same ;  and  said,  he  would  s^e  me  satisfied  for 
the  same,  though  it  cost  him  an  hundred  pounds, 
which  I  did  for  him,  being  ni}'  master ;  otherwise 
the  evidence  I  could  have  given  would  have  hanged 
Prude  ;"  were  held  actionable  ;  and  that  both  in  this, 
and  in  all  the  other  cases  which  had  been  mentioned 
on  the  statute,  and  where  judgment  had  been  given 
for  the  plaintiff,  the  words  had  always  charged  him 
with  some  particular  fact,  and  were  positive  and 
certain ;  but  that  where  they  were  doubtful  and 
general,  and  signified  only  the  opinion  of  the  de- 
fendant, they  were  not  actionable.  That  the  words 
in  the  case  at  bar  neither  related  to  the  plaintiff  as 
a  peer,  nor  as  a  lord  lieutenant,  and  charged  him 
with  no  particular  crime ;  and  that  if  the  laws  were 
expounded  to  rack  people  for  words,  instead  of  re- 
medying one  mischief,  many  would  be  introduced  ; 
for  in  such  case  they  would  be  made  snares  to  men. 
He  farther  said,  that  it  was  fit  the  law  should  be 
settled  by  some  rule,  because  it  is  a  wretched  con- 
dition for  people  to  live  under  such  circumstances 
as  not  to  know  how  to  demean  themselves  towards 

*Cro.  Eliz.  1.  t  Cro.  Eliz.  67. 


155 

a  peer ;  and  that  since  no  limits  had  before  been 
prescribed,  it  was  fit  there  should  be  some  then,  and 
that  the  court  should  go  by  the  same  rules  in  the 
case  of  a  peer  as  in  that  of  a  common  person  ;  that 
is,  not  to  construe  the  words  actionable,  without 
some  particular  crime  charged  upon  the  plaintiff,  or 
an  allegation  of  special  damage. 

North,  C.  J.  and  Wyndham,  J.  agreed  with 
Scroggs,  the  former  being  of  opinion  that  all  words 
reflecting  upon  a  peer,  as  he  is  the  king's  counsel- 
lor, or  as  he  is  a  man  of  honour  and  dignity,  are 
actionable  at  the  common  law.  That  in  many  cases 
where  a  man  should  express  his  particular  dises- 
teem,  an  action  would  not  lie,  as  if  he  had  said,  "  I 
care  not  for  such  a  lord,"  but  that  words  of  general 
opinion  and  disesteem  were  actionable,  as  was  held 
in  the  Marquis  of  Dorchester's  case  ;*  and,  by  the 
opinion  of  North,  C.  J.  and  Wyndham  and  Scroggs, 
Justices,  judgment  was  given  for  the  plaintiff. 

And  in  the  case  of  the  Earl  of  Pembroke  v.  Sta- 
niel,f  the  words  were,  "  The  Earl  of  Pembroke  is 
of  so  little  esteem  in  the  country,  that  no  man  of 
reputation  hath  any  esteem  for  him  fhe  is  a  pitiful 
fellow,  and  no  man  will  take  his  word  for  two-pence, 
and  no  man  of  reputation  values  him  more  than  I  do 
the  dirt  under  my  feet ;"  and  they  were  held  action- 
able under  the  statute,  though  they  wojdd  not  have 
been  so  in  the  case  of  a  private  person. 

And  in  the  case  of  Lord  Falkland  v.  Phipps,i  the 
terms  villain,  villanous  rogue,  scrub,  and  scoundrel, 
were  held  actionable. 

From   these  cases  it  appears,  that  general  ex 

*  1  Sid. 293.  ■  Freem.  Rep.  49.    i  Mm.  Abr:  5-1 

Comyn's  Rep.   I 


150 

pressions  of  contempt  and  disesteem,  tending  to  de- 
grade and  vilify  the  characters  of  peers  and  great 
officers  of  the  realm,  are  actionable,  as  well  as  those 
which  impeach  their  loyalty,  or  impute  the  com- 
mission of  any  criminal  and  disgraceful  fact.  Where 
words  are  spoken  of  a  peer,  which  would  be  action- 
able as  spoken  of  a  private  person,  the  plaintiff  has 
it  at  his  option*  to  proceed  either  upon  the  statute, 
or  in  the  usual  form  of  action. 

The  incidents  peculiar  to  Scandalum  Magnatum, 
as  relating  to  the  process,  pleading,  justification,  &c. 
will  be  considered  in  common  with  the  correspond- 
ing ones  belonging  to  the  proceeding  at  common 
law. 

'  Per  Twisden.     Freem.  Rep.  49.  pi  58. 


157 


CHAPTER  VII. 


Of  Special  Damage. 

Whenever  damage  arises  in  consequence  of  a 
false  imputation,  wrongfully  published,  an  action 
is  maintainable  on  the  ground  of  such  specific 
damage. 

Under  this  division  two  questions  occur  : 

1.  What,  in  legal  contemplation,  amounts  to  an 
actionable  damage  ? 

2.  How  must  such  damage  be  connected  with  the 
slander,  to  constitute  a  ground  of  action  ? 

1.  What,  in  legal  contemplation,  amounts  to  an 
actionable  damage. 

The  defendants'  act  affects  either  rights  already 
acquired,  or  prevents  the  acquisition  of  some  further 
benefit  or  advantage. 

Where  the  plaintiff  has  been  wrongfully  charged 
with  the  commission  of  some  crime,  if  the  imputa- 
tion rest  as  a  bare  charge,  not  officially  made  in  the 
usual  course  of  a  criminal  proceeding,  the  party,  it 
seems,  has  a  right  to  consider  the  expense  and  la- 
bour to  which  he  is  put  for  the  purpose  of  manifest- 
ing his  innocence  as  special  damage. 

As  where  the  plaintiff,  in  consequence  of  an  in- 
sinuation that  he  was  guilty  of  murder,  was  obliged 
to  have  an  inquest  taken  on  the  body  of  the  de- 
ceased.* 

*  Per  Lord  Mansfield.  Pcake  v.  Oldham.  Cowp.  277. 


158 

But  if  the  defendant  proceed  according  to  the 
usual  forms  of  criminal  prosecution,  though  the 
plaintiff  is  entitled  to  recover  damages  for  the  scan- 
dal, vexation,  and  expense,  brought  upon  him  by 
an  unfounded  and  malicious  accusation,  he  must 
proceed  either  by  an  action  of  conspiracy  or  by  a 
special  action  on  the  case,  founded  upon  the  crimi- 
nal proceeding  itself,  and  cannot  recover  (as  will 
afterward  be  seen)  in  a  common  action  for  any 
scandalous  matter  published  in  the  course  of  such  a 
prosecution.* 

Where  a  party  is  prevented  from  selling,  ex- 
changing, or  making  any  advantageous  disposition 
of  lands,  or  other  property,  in  consequence  of  the 
impertinent  interference  of  the  defendant,  he  may 
maintain  an  action  for  the  inconvenience  which  he 
has  suffered ;  but  damage  must  be  shown  ;  and  the 
mere  apprehension,!  that  in  consequence  of  the 
slander,  the  plaintiff's  title  may  be  drawn  in  ques- 
tion, will  not  support  an  action. 

And  it  is  not  sufficient  to  show  generally  that  the 
plaintiff  intended  to  sell  to  any  one  that  would  buy, 
but  he  must  prove  that  he  was  in  treaty  to  sell  them 
to  some  specific  person.:}:  Neither  will  it  suffice  to 
show,  that  the  value  of  the  lands  was  lessened  in 
people's  opinions,  but  proof  must  be  given  of  damage 
actually  sustained.  Where  the  alleged  loss  consists 
in  the  prevention  of  the  sale  of  lands,  it  must  ap- 
pear that  the  words  directly  tende  1  to  defeat  the 
plaintiff's  title. || 

*  3  Bl.  Com.  126.     10  Mod.  210.  219,  220.     Str.  691. 

t  Cro.  Eliz.  197.     1  Vin.  Ab.  550.  pi.  6.     Yelv.  SO.     Cro.  J.  642.  contr ' 

i  Manning  v.  Avery,  3  Kcb.  153.  II  Burr.  2622. 


159 

In  Sir  W.  Gerrard  v.  Dickenson,*  it  was  said  by 
Wray,  C.  J.  that  in  all  cases  where  one  doth  entitle 
a  stranger,  it  is  not  actionable,  except  it  be  shown 
that  some  damage  comes  to  the  proprietor  by  it,  viz. 
that  he  cannot  let  it  or  sell  it,  &c. 

The  defendant  said,f  "  M.  has  mortgaged  all  his 
lands  for  100/.  and  has  no  power  to  sell  or  let  the 
same."  And,  because  no  special  damage  nor  parti- 
cular colloquium  was  laid  of  a  treaty  to  sell  them 
to  any  person  certain,  but  only  in  general  that  he  in- 
tended to  sell  it  to  any  one  that  would  buy,  which  is 
too  general,  judgment  was  stayed. 

In  Elborow  v.  Alien,!  the  action  was  brought  for 
the  words,  "  He  is  but  a  bastard,"  spoken  of  the 
plaintiff,  who  had  lands  by  descent;  by  means  of 
which  he  was  put  to  great  expense  to  defend  his 
title.  And  two  of  the  justices,  against  the  opinion 
of  Doderidge,  J.  decided,  that  the  words  were  ac- 
tionable, the  plaintiff  having  averred  in  his  declara- 
tion that  he  was  put  to  a  great  charge  to  defend  his 
inheritance. 

But  it  has  been  held,  that  to  institute  a  civil  suit, 
though  there  be  no  good  ground  for  it,  is  not  ac- 
tionable, because  it  is  a  claim  of  right  for  which  the 
plaintiff  has  found  pledges,  is  amerciable  pro  falso 
clamore,  and  is  liable  to  costs,  and  therefore  that  no 
action  lies,  unless  the  defendant  be  maliciously 
sued,  ||  with  intent  to  imprison  him  for  want  of  bail. 
And  upon  the  same  grounds,  it  should  seem, 
that  the  plaintiff  is  precluded  from  recovering  from 

*  Cro.  Eliz.  196. 

t  Manning  v.  Avery,  3  Keb.  153.     1  Vin.  Ab,   553.  pi.  21.  Sty.  169.  176. 
Palm.  529. 

I  Cro.  J.  642. 

II  See  Saville  v.  Roberts.   1  Salk  13.  4  Co.  9  Co.  56,  b.  1  Roll.  Abr.  112. 


160 

the  person  who  spoke  the  words  which  brought: 
the  title  into  litigation,  since,  in  contemplation  of 
law,  he  has  been  already  satisfied  for  the  false 
claim. 

And  next,  where  the  plaintiff  is  prevented  from 
acquiring  some  benefit  or  advantage. 

In  general,  where  the  plaintiff  is  hindered,  by 
the  mere  wrongful  act  of  the  defendant,  from  suc- 
ceeding to  any  preferment,  benefit,  or  advantage 
whatever,  he  may  maintain  an  action  for  the  special 
damage. 

As  if  a  patron*  intended  to  present  a  divine  to  a 
benefice,  and  the  defendant  say  of  him  "  He  is  an 
heretic,  or  a  bastard  ;"  for  which  reason  the  pa- 
tron refuses  to  present  him,  and  he  loses  his  pre- 
ferment, an  action  is  maintainable. 

So,  if  the  defendant  say  of  a  candidate  for  an 
office,  that  he  is  an  ignorant  man  and  unfit  for  the 
place,  by  means  of  which  he  loses  it,  an  action 
lies.f(l) 

So,  where  a  servant  or  bailiff  is  prevented  from 
getting  a  place.| 

Loss  of  marriage  seems  to  have  been  always  con- 
sidered as  a  temporal  damage,  ||  although  the  words 
themselves  have  imputed  matter  of  mere  spiritual 
cognizance. 

In  Matthews  v.  Crass,§  which  was  an  action  for 
words,  occasioning  loss  of  marriage ;  after  verdict 
for  the  plaintiff,  it  was  urged,  on  motion  in  arrest  of 

*  4  Co.  16.         t  March.  Rep.  pi.  217.  1  Buls.  138.        \  Shepp.  Coll.  192. 
||  Davis  v.  Gardiner.  4  Co.  16.  Poph.  36.  1  Roll.  Rep.  34,  35.  109.  Mo.  409. 
Cro.  Car.  155.    Case  of  Sir  C  Gerald's  bailiff.    Bui.  N.  P.  7. 
§  Cro.  Jac.  323. 

(1)  Mayrantv.  Richardson,  1  Nott  and  M'Cord's  Rep.  347,  contra. 


101 

judgment,  that  this  was  the  first  case  where  loss  of 
marriage  was  ever  laid  for  words  spoken  of  a  man, 
and  therefore  was  not  warranted  by  Ann  Davis's 
case.*  But  the  court  conceived  it  to  be  immate- 
rial, in  case  of  loss  of  marriage,  whether  the  plain- 
tiff is  a  man  or  a  woman. 

In  order  to  support  an  action  grounded  upon  the 
loss  of  marriage,  it  is  necessary  for  the  plaintiff  to 
allege  and  prove  that  a  marriage  with  some  specific 
personf  was  in  contemplation,  and  was  hindered  by 
the  speaking  of  the  words. 

The  necessity  of  proving  a  specific  loss,  falls  with 
peculiar  hardship  upon  unmarried  females,  who 
are  thereby  frequently  debarred  from  maintaining  ac- 
tions for  imputations  most  unfounded  and  injurious. 
In  no  other  case  can  it  be  more  fairly  presumed  that 
the  scandal,  if  believed,  will  produce  detriment, 
than  where  an  unmarried  female  is  charged  with  in- 
continence ;  and  therefore,  in  no  other  case  is  the 
plaintiff  better  entitled,  in  reason  and  good  sense, 
to  the  benefit  of  that  presumption,  in  order  to  ob- 
tain a  remedy  for  the  scandal,  and,  which  is  of  infinite- 
ly more  importance,  an  opportunity  of  fairly  meet- 
ing and  rebutting  the  calumny. 

No  species  of  slander  can  be  more  cruel  and  ma- 
licious in  its  origin,  none  more  pernicious  in  its  con- 
sequences ;  3^et,  unless  some  specific  damage  can 
be  proved,  or  the  charge  be  committed  to  writing, 
the  suffering  party,  whose  peace  of  mind  is  destnry- 
ed,  and  prospects  ruined,  has  no  appeal  but  to  courts, 
whose  powers,  limited  as  they  are,  to  the  infliction 
of  penance  for  the  spiritual  benefit  of  the  wrong  doer, 

*  i  Co.  11.  vide  infra. 

!  I  Roll  36,  I.  15.     1  Com.  Dig.  trt.  Dcfam.  D.  30 
21 


162 

can  administer  no  substantial  relief  or  protection  to 
the  party  wronged. 

Yet  it  is  this  very  jurisdiction  of  the  ecclesiastical 
courts,  which  has  frequently  been  assigned  as  a 
reason  (though  surely  an  inadequate  one)  why  the 
temporal  courts  should  not  interfere  to  give  a  re- 
medy in  damages. 

It  has  been  said,  that  were  the  courts  of  law  in 
such  cases  to  entertain  an  action,  it  would  be  pro- 
ductive of  hardship  to  the  defendant,  who  would  be 
twice  punished  for  the  same  offence,  by  an  award 
of  damages  in  the  temporal,  and  by  the  infliction  of 
penance  in  the  spiritual  court. 

This  reasoning  is  evidently  fallacious :  if  a  man 
contrive,  by  one  and  the  same  act,  to  offend  against 
religion,  and  to  do  a  serious  temporal  injury  to  his 
neighbour ;  though  the  act  be  one  and  the  same,  it 
unites  and  comprehends  offences  wholly  distinct, 
and  it  is  absurd  to  say  that  the  spiritual  offence  shall 
protect  the  offender  from  consequences  merely  tem- 
poral, and  that,  by  rendering  himself  liable  to  a  tri- 
fling penance,  he  shall  rid  himself  of  a  load  of  tem- 
poral responsibility. 

The  objection,  too,  falsely  assumes  that  the  pay- 
ment of  damages  is  in  the  nature  of  punishment ;  by 
the  law  of  England,  the  amount  of  damages  is  in  all 
cases  to  be  measured  by  the  temporal  prejudice 
sustained  by  the  plaintiff,  and  they  are  awarded 
without  any  regard  to  the  penal  correction  of  the  de- 
fendant, or  the  reformation  of  his  manners  ;  the  rea- 
son, at  all  events  is  a  strange  one  to  have  weighed 
in  a  court  of  law,  whose  records  abound  with  cases, 
which  prove,  that  for  the  same  act  a  person  may  be 
both  civilly  and  criminally  responsible. 


',      1G3 

Such,  however,  is  the  law  upon  this  point,  though 
formerly  much  doubt  was  entertained  upon  it. 

In  Ann  Davis's  case,*  the  plaintiff  declared  that 
she  was  a  virgin  of  good  fame,  &c.  and  that  one 
Anthony  Elcock,  citizen  of  London,  of  the  substance 
of  3000/.,  desired  her  for  his  wife,  and  had  there- 
on conferred  with  John  Davis  her  father,  and  was 
ready  to  conclude  it,  when  the  defendant,  knowing 
the  premises,  but  intending  to  injure  the  said  Ann, 
and  to  obstruct  the  said  Anthony's  proceedings, 
published  of  the  said  Ann  these  words  :  "  I  know 
Davis's  daughter  well,  she  dwelt  in  Cheapside,  and 
there  was  a  grocer  there  that  did  get  her  with 
child ;"  by  which  the  said  Anthony  refused  to  take 
her  to  wife. 

After  verdict  for  the  plaintiff,  it  was  moved  in  ar- 
rest of  judgment,  that  the  words  were  not  action- 
able, because  the  defamation  was  spiritual.  But  it 
was  resolved  by  the  whole  court,  that  the  action  was 
maintainable  : 

1.  Because,  if  the  woman  had  a  bastard,  she  was 
punishable  by  the  statute  of  18  Eliz.  c.  3. 

2.  That  if  the  defendant  had  charged  her  barely 
with  incontinence,  the  action  would  have  been 
maintainable,  since  the  ground  of  the  action  was 
temporal,  namely,  that  she  was  defeated  of  her 
marriage. 

But  in  subsequent  cases,f  the  first  of  the  reasons 
given  in  Ann  Davis's  case  was  denied  to  be  law  ; 
and  it  was  said,  that  the  sole  reason  on  which  the 
judgment  rested  was  the  loss  of  marriage. 

In  Baldwin  and  his  wife  v.  Flower,  i  it  was  held, 

*  4  Co.  16.  1!  1  Lev.  261.     Sid.  397.     Vent.  4. 

t  3  Mo*  120. 


104 

lat  an  action  lay  lor  calling  the  wife  '*  whore,"  be- 
ause,  by  such  means,  she  might  lose  the  communi- 
ation  and  society  of  her  neighbours. 

In  Medhurst  v.  Balaam,*  the  plaintiff  declared 
she  had  several  suiters  to  macry  her ;  and  that  the 
defendant  said  of  her,  "  She  is  with  child,  and  hath 
taken  physic  for  it ;"  by  which  she  became  in  dis- 
grace, and  lost  the  society  of  her  neighbours.  And 
it  was  adjudged  that  the  action  lay,  though  no  loss 
of  marriage  was  alleged. 

This  has,  however,  been  overruled  in  a  variety  of 
cases. f 

In  Ogden  v.  Turner,}  Holt  C.  J.  observed,  "  To 
say  of  a  young  woman  that  she  had  a  bastard,  is  a 
very  great  scandal,  and  for  which,  if  I  could,  I  would 
encourage  an  action  ;  but  it  is  not  actionable,  be- 
cause it  is  a  spiritual  defamation,  punishable  in  the 
spiritual  court." 

In  B3T011  v.  Ernes. ||  A  young  unmarried  woman, 
had  been  charged  with  gross  incontinency.  After 
a  verdict  for  the  plaintiff,  it  was  moved,  in  arrest  of 
judgment,  that  the  words  were,  not  actionable,  be- 
cause they  were  of  spiritual  cognizance,  and  that  no 
temporal  loss  had  accrued  :  that  to  say,  "  a  woman 
has  a  bastard,"  was  never  actionable  before  the  sta- 
tute for  the  provision  of  bastard  children  ;  and  that, 
since  the  statute,  it  had  never  been  held  actionable 
but  where  the  party  had  been  brought  within  the 
penalty  of  the  statute,  which  is  only  where  the  bas- 
tard becomes  chargeable  to  the  parish ;  that  these 

*  1  Vin.  Ab.  393.  pi.  7.     Sid.  397. 

t  1  Lev.  261.  2Keb.  451.  1  Sid.  396.  Lord  Ray.  1004. 

I  Holt  R.  40. 

I!  12  Mod.  106.    3  Will.  3. 


liii) 


words  were  most  scandalous  of  a  young  woman ; 
and  that,  had  it  been  tea  nova,  perhaps  an  action 
would  have  lain,  but  that  there  were  many  authori- 
ties to  the  contrary.     That  it  was  a  crime  of  which 
the  spiritual  court  had  conusance,  and  could  censure; 
and  that  it  was  not  reasonable  that  the  party  should 
be  liable  to  ecclesiastical  censure  and  an  action  too, 
on  which  account  Ann  Davis's  case  had  been  often 
shaken,  and  judgment  was  given  for  the  defendant. 
For  similar  words  in  Greaves  v.  Blanchet,*  judg- 
ment, after  verdict  for  the  plaintiff,  was  arrested; 
the  court  observing,  that  they  could  not  overthrow 
so  many  authorities,  and  that  the  reason  was,  that 
fornication  was  a  spiritual  offence,  and  that  no  ac- 
tion lay  at  Common  Law  for  what  the  Common  Law 
took  no  notice  of.  , 

In  the  above  case,t  the  court  said  also,  that  it  it 
were  res  nova,  it  were  reasonable  to  make  the  words 
actionable,  for  no  greater  misfortune  can  befall  a 
young;  woman,  whose  well-doing  depends  upon  her 
having  a  good  husband,  than  to  be  reputed  a  whore  ; 
but  the  authorities  are  too  many  and  great  to  run 
counter  to  them,  the  reason  of  them  is,  that  fornica- 
tion is  a  spiritual  offence,  not  punishable  at  Com- 
mon Law,  and  an  action  shall  not  lie  for  charging 
one  with  an  offence  of  which  the  law  takes  no  no- 
tice, without  special  damages  ;  and  if  Ann  Davis  s 
case  had  been  pursued  as  it  had  been  contradicted, 

it  would  do.  .  . 

From  these  and  many  similar  authorities,  it  ap- 
pears, that  the  judges  have  long  ago  felt  themselves 
overpowered  with  the  number  of  the  decisions  upon 

*Salk.695.     6  Mod.  143.  t  6  Mod.  148. 


166 

this  point,  constantly  regretting  that  they  were  ii£> 
longer  at  liberty  to  determine  differently. 

Before  this  subject  is  dismissed,  it  may  be  proper 
to  remark,  that  in  the  old  decisions  upon  this  point, 
the  only  question  contemplated  seems  to  have  been, 
whether  the  words  of  incontinency*  were  actionable, 
as  imputing  a  crime  ;  and  it  does  not  appear  to  have 
been  much  considered,  whether  they  were  not  ac- 
tionable on  the  broad  'plain  ground  that  they  imme- 
diately tend  to  hinder  the  plaintiff's  advancement  in 
life  by  an  advantageous  marriage. 

It  may,  perhaps,  be  too  late  to  contend,  that  the 
plaintiff  is  entitled  to  recover  upon  this  general  prin- 
ciple ;  the  courts,  however,  have  manifested  a  desire 
to  administer  every  relief  in  their  power  to  plain- 
tiffs of  this  description,  so  that  the  most  trifling 
loss  sustained  in  consequence  of  such  slander,  as  of 
a  dinner,  or  other  hospital  but  gratuitous  entertain- 
ment,! will  entitle  the  party  to  her  action. 

And,  in  general,  wherever  a  person  is  prevented 
by  the  slander  from  receiving  that  which  would 
otherwise  have  been  conferred  upon  him,  though 
gratuitously,  the  special  damage  will  support  an 
action.  As  where,  in  consequence  of  a  charge  of 
incontinence,  a  dissenting  preacher  was  prevented 
from  preaching^  and  receiving  voluntary  donations 
from  his  congregation. 

So,  the  loss  of  particular  customers  by  a  trades- 
man is  an  actionable  special  damage.  || 

*  See  the  first  resolution  in  Ann  Davis's  case,  4  Coke  16. 
j  Moore  v.  Meagher  in  Error,  1  Tau.  39. 
J  Hartley  v.  Herring.    8  T.  R.  130. 
Barron  v.  Gibson.  Lord  Rad.  S31.  Str.  566.  Bull,  N.  P.  7.  1  Lev.  14X1: 


167 

And  it  is  immaterial  in  such  case,  whether  the 
words  relate  to  his  business  or  otherwise.* 

A  mere  apprehension  of  ill  consequences  cannot 
constitute  a  special  damage  ;  so  that  it  has  been  held 
insufficient  for  the  plaintiff  to  allege,  that  in  conse- 
quence of  the  words,  discord  happened  between 
him  and  his  wife,f  and  he  was  in  danger  of  a  di- 
vorce. 

Or,  to  allege  that  the  plaintiffs  was  exposed  to 
her  parent's  displeasure,  and  in  danger  of  being  put 
out  of  their  house. 

Or,  to  say  he  lost  the  affection  of  his  mother, |! 
who  intended  him  100/. 

2.  How  must  the  special  damage  be  connected  with 
the  slander,  to  constitute  a  ground  of  action? 

It  was  said  by  Holt,  C.  J.  that  "  At  Common 
Law,  if  a  man  do  an  unlawful  act,  he  shall  be  an- 
swerable for  the  consequences,  especially  where 
the  act  is  done  with  the  intent  that  consequential 
damage  shall  follow." § 

But  it  is  not  essential  that  the  damage  should  be 
the  necessary  and  inevitable  consequence  of  the 
slanderous  words ;  it  is  sufficient,  for  instance,  if 
they  impose  upon  the  plaintiff  a  violent  and  urgent 
motive  for  incurring  expense. 

In  the  case  of  Peake  v.  Oldham, ^[  Lord  Mans- 
field expressed  an  opinion,  that  the  expenses  of  an 
inquest  incurred  by  a  plaintiff,  who  had  been  wrong- 
fully accused  of  murder,  might  be  considered  as 
special  damage. 

*  1  Ley,  140.  t  1  Roll.  34. 

\  Barnes  v.  Brutldell,  1  Ler.  61. 

Car.  1.     1  Com.  Dig.  tit.  Defam.  D.  SO.  §  Ld.  Rsy.  4&P 

'   r'oivp.  277. 


16S 

The  rule  appears  to  be,  that  the  damage  must  be 
the  mere,  natural,  and  immediate  consequence  of  the 
wrongfulact. 

The  defendant  asserted,  that  the  plaintiff  had  cut 
his  master's  cordage;*  upon  which  the  master  dis- 
charged him,  though  under  an  engagement  to 
employ  him  for  a  term.  It  was  held  by  the  court, 
that  the  discharge  was  not  a  ground  of  action ;  that 
the  special  damage  must  be  the  natural  and  legal 
consequence  of  the  words  spoken ;  and  that  the 
defendant  was  no  more  answerable  for  the  dis- 
charge, than  if,  in  consequence  of  the  words,  other 
persons  had  assaulted  and  thrown  the  plaintiff  into 
a  horse-pond. 

The  damage  must  be  attributable  ivholly  to  the 
words  ;  so  that  where  the  reason  of  a  person's  re- 
fusing to  employ  the  plaintiff  was  founded,  partly 
on  the  defendant's  words,  and  partly  on  the  cir- 
cumstance of  his  having  been  previously  discharged 
by  another  master,  it  was  held  that  no  action  was 
maintainable,  f 

And  it  seems,  that  in  general,]:  where,  in  conse- 
quence of  the  words,  a  third  person  has  refused  to 
perform  a  contract  previously  made  with  the  plain- 
tiff, and  which  he  was  in  law  bound  to  perform,  no 
action  is  maintainable  ;  for  the  plaintiff,  in  such  case, 
is  entitled  to  a  compensation  for  the  non-perform- 
ance of  the  contract;  and,  were  he  allowed  to 
maintain  Ins  action  for  the  slander,  he  would  re- 
ceive a  double  compensation  for  the  same  injury : 
first,   against   the  author  of  the  slander ;    and   se- 

*  Vicars  v.Wilcocks,  8  East,  1.     1 8  East.  1.     1 2  Bos.  and  Pull.  284.  8  East.  T 


lt>9 

condiy,  against  the  person  who  had  refused  to  per- 
form his  agreement. 

This  legal  difficulty  may,  in  some  instances,  be 
productive  of  hardship  to  the  plaintiff:  he  may  re- 
sort, it  is  true,  to  his  legal  remedy  against  the  per- 
son refusing  to  perform  his  contract ;  but  this  can 
scarcely  be  considered  as  a  full  and  real  compensa- 
tion to  the  party,  who,  by  the  defendant's  wrongful 
act,  has  had  a  benefit  in  possession  wrested  from 
him,  and  converted  into  a  bare  legal  right. 

The  defendant*  having  libelled  a  performer  at  a 
place  of  public  entertainment  she  refused  to  sing, 
and  the  proprietor  brought  his  action  on  the  ground 
of  special  damage,  alleging  that  his  oratorios  had,  in 
consequence  of  her  absence,  been  more  thinly  at- 
tended. But  it  was  held,  by  the  learned  judge  who 
presided  at  the  trial,  that  the  injury  was  too  re- 
mote ;  that  if  the  performer  was  really  injured,  an 
action  lay  at  her  suit ;  and  that  it  did  not  appear 
but  that  her  refusal  to  perform  arose  from  caprice 
or  indolence. 

The  plaintiff  having  once  recovered  damages  in 
an  action  for  words,  cannot  afterward  recover  an 
ulterior  compensation  for  any  loss  subsequently  re- 
sulting from  the  same  words.f  Where  the  plaintiff,  :£ 
knowing  the  defendant's  sentiments,  procures  the 
publication  of  that  from  which  damage  results,  he 
will  not  afterward  be  at  liberty  to  ascribe  his  loss 
to  the  defendant's  act,  but  be  considered  as  the  vo- 
luntary author  of  the  mischief  which  follows. 

*  1  Esp.  R.  48.  t  Bull.  N.  P.  V. 

+  3  B.  and  P.  502.  5  Esp.  R.  15. 

32 


17U 


CHAPTER  VIII. 


Of  the  Defendant's  Wrong. 

Having  thus  considered  the  nature  and  quantity 
of  the  damage  which  the  plaintiff  must  have  sus- 
tained to  entitle  him  to  a  legal  compensation,  the 
next  question  for  inquiry  is,  When  shall  the  act  of 
communication  be  deemed  a  wrong  ?  Since,  as  has 
already  been  seen,*  it  is  the  connexion  of  the  plain- 
tiff's loss  with  the  defendant's  wrong,!  which  ren- 
ders the  title  to  a  remedy  by  action  complete.  The 
wrongful  act  of  the  defendant  is  compounded, 

1.  Of  the  mere  mechanical  means  by  which  the 
communication  is  effected. 

2.  Of  the  malicious  intention  with  which  it  is 

made. 

In  order  to  support  an  action,  it  is,  of  course, 
essential  that  the  slanderous  matter  should  be  con- 
veyed to  the  mind  of  a  third  person,  or,  in  technical 
language,  should  be  published,  for  otherwise  no  de- 
triment can  have  accrued  from  the  plaintiff's  act ; 
but,  with  the  exception  of  the  case  of  libel,  the 
means  of  publication  are  indifferent,  and  do  not  af- 
fect the  relevancy  of  the  action. 

In  the  case  of  libel,  it  is  sufficient  if  the  defendant 
be  the  partial  instrument  of  communication,  either 
by  assisting  in  its  original  construction  or  subse- 
quent promulgation  ;  since,  if  one  party  were  to 

*  T.  8.  1 1  Cora.  Dig.  tit.  Action  on  the  Case.  B.  1.  4  T.  It.  141 


171 

dictate,  a  second  to  write,  and  a  third  to  distribute 
written  or  printed  slander,  the  plaintiff  would  be 
left  without  remedy,  unless  each  of  these  parties 
were  to  be  considered  as  responsible  for  the  whole 
effect  produced. 

The  subject  of  publication  will  hereafter  be  dis- 
cussed as  a  matter  of  evidence  ;  assuming  therefore 
for  the  present,  that  some  publication  has  been 
made  to  a  third  person,  with  the  defendant's  know- 
ledge, and  through  his  procurement,*  the  next 
point  for  consideration  is — 

The  malicious  intention  with  which  he  published. 

The  characteristic  of  wrong,  in  these  cases,  is, 
the  wilful  design  and  intention  of  the  defendant  to 
injure  the  object  of  his  publication.(l) 

Every  definition  of  the  subject  matter  of  an  ac- 
tion for  slander,  to  be  found  in  the  books  of  reports, 
or  elementary  writers,  includes  malice  as  an  essen- 
tial ingredient ;  whence  it  may  be  laid  down  as  a 
general  position,  that  whenever  a  damage  of  the 
nature  described  in  the  preceding  chapters,  results 
from  a  malicious  intention  on  the  part  of  the  pub- 
lisher, an  action  is  maintainable. 

There  is,  however,  a  distinction  between  malices 
when  used  in  the  strict  legal  sense  of  the  word,  as 
the  characteristic  of  the  defendant's  wrong,  and 
as  understood  in  its  moral  and  more  popular  accep- 
tation. 

In  the  latter  sense,  malicious  slander  consists  in 

*  See  Baldwin  v.  Elphinstone,  Bl.  Rep.  1037. 


(1)  The  insanity  of  the  defendant,  therefore,  at  the  time  of  speaking  the 
words,  would  be  matter  of  defence,  provided  it  was  great  and  notorious.  Dich 
■inson  v.  Barber,  9  Mass.  Rep.  225.     Horner  v.  Marshall's  Mm.  5  Munf.  466. 


[72 

kt  The  relating  either  truth  or  falsehood  tor  the  pur- 
pose of  creating  misery."* 

But  the  law,  from  reasons  of  policy,  in  many  in- 
stances, presumes  conclusively  that  the  intention  of 
the  party  was  innocent,  or  at  least  will  not  suffer  his 
motives  to  be  questioned  in  an  action  for  slander. 

And  this  happens  where  he  is  acting  under  the 
immediate  sanction  of  the  law,  in  the  performance 
of  some  public  or  private  duty ;  in  such  cases,  he 
may  publish  that  which  is  detrimental  to  another, 
either  from  a  sense  of  duty,  or,  as  is  very  possible, 
may  take  advantage  of  his  situation  for  the  purpose 
of  mischief  and  vexation.(l)  Now,  though  the  mo- 
ral offence,  which  depends  merely  upon  the  mali- 
cious intention,  cannot  be  extenuated,  but  is  rather 
aggravated  by  the  selection  of  such  an  opportunity 
for  effecting  mischief,  yet  the  law,  on  account  of  the 
inconveniences  and  perplexities  which  would  arise 
from  inquiring  in  such  cases,  into  the  real  motives 
by  which  the  party  was  influenced,  prohibits  such 
investigation,  and  will  not  permit  the  act  to  be  at- 
tributed to  any  other  origin  than  the  proper  and 
eonscientious  one  suggested  by  the  situation  of  the 
defendant. 

Were  every  malicious  and  oppressive  act  to  be 
considered  illegal,  the  law  would  be  very  agreeable 
to  the  theorist,  but  utterly  unfit  for  the  practical 
purposes  of  society,  on  account  of  the  infinite  per- 
plexity and  uncertainty  which  would  occur  in  dis- 
tinguishing between  bad  and  good  motives,  where 

*  Paley's  Philosophy,  Vol.  I.  p.  28<$. 


(1)  See  Sehocli  v.  M'Chesney,  8  P.  A.  Browne's  Rep.  65.     Opinion  of  Brack' 

em:'tde;e  .t. 


17d 

the  act  done  might  arise  from  either  source.  The 
secret  purpose  of  a  man's  heart  is  of  too  difficult 
ascertainment  to  be  made  the  general  criterion  of 
legal  right  or  wrong  ;  and  hence  it  is  that  the  law, 
which  must  resort  to  more  plain  and  certain  evi- 
dence, on  which  it  may  found  more  precise  pre- 
scriptions, may  not  imfrequently  become  the  instru- 
ment of  oppression.  For  example  :  where  a  cre- 
ditor, from  motives  of  malice  and  revenge,  and  not 
with  a  view  to  his  legal  remedy,  deprives  his  debtor 
of  liberty ;  as  a  matter  of  conscience  the  act  is  cri- 
minal and  unjustifiable  ;  yet  it  must  be  sanctioned 
and  tolerated  by  the  law,  in  order  to  avoid  conse- 
quences most  pernicious  and  absurd  ;  for  were  it 
otherwise,  a  man's  security  for  his  debt  would  de- 
pend on  the  temper  and  disposition  of  his  mind, 
upon  his  motive  for  becoming  a  creditor  in  the  first 
instance,  and  his  reasons  for  enforcing  his  claim  in 
the  second ;  and,  however  pure  his  intention,  he 
might  be  deterred  from  proceeding,  by  the  appre- 
hension of  being  involved  in  litigation,  upon  a  sug- 
gestion of  malice,  by  his  adversary. 

And  the  same  kind  of  reasoning  is  applicable  to 
the  case  of  slander :  it  would  frequently  lead  to  too 
nice  and  critical  an  investigation,  to  inquire  whether 
a  person  who  published  words  in  the  course  of  per- 
forming a  public  duty,  was  actuated  by  malice  and 
ill-will,  or  by  conscientious  motives  ;  and  much  in- 
convenience would  arise,  were  persons  to  be  deter- 
red from  the  performance  of  public  duties,  or  from 
a  fair  prosecution  of  their  claims,  by  the  apprehen- 
sion of  the  liabilities  and  danger  to  which  they  ex- 
posed themselves. 


174 

In  an  action  for  slander,  the  defendant's  malice  is 
immaterial, 

1.  Where  the  imputation  is  true  ; 

2.  Where  the  publication  is  made  in  the  regular 
course  of  parliamentary  or  judicial  proceedings  ; 

3.  Where  such  proceedings  are  faithfully  re- 
ported. 

In  such  cases,  the  law,  considering  the  benefit 
which  society  derives  from  the  exposure  of  villany, 
or  rather,  perhaps,  the  impropriety  of  a  person's 
recovering  damages  in  a  proceeding  tainted  with 
his  own  misconduct ;  the  necessity  of  securing  those 
who  have  public  duties  to  perform,  or  private  claims 
to  enforce,  from  the  apprehension  and  fear  of  col- 
lateral consequences,  and  the  advantages  derived 
from  the  publicity  of  parliamentary  or  judicial  pro- 
ceedings, will  not,  however  malicious  ami  repre- 
hensible the  defendant's  intention  may,  in  fact,  have 
been,  allow  his  motives  to  be  questioned  in  an  ac- 
tion for  the  scandal. 


17  D 


CHAPTER  IX. 


Where  the  Imputation  is  true. 

Where  the  defendant  has  asserted  no  more  than 
is  true,  the  consequent  damage  is  immaterial,  since 
the  law  will  not  allow  the  plaintiff  to  attribute  his 
loss  to  the  defendant's  act,  for  the  purpose  of  ob- 
taining a  compensation  by  action. 

Sir  William  Blackstone,*  in  his  Commentaries, 
seems  to  consider  the  defendant's  exemption  in  this 
instance  as  extended  to  him  in  consideration  of  his 
merit  in  having  warned  the  public  against  the  evil 
practices  of  a  delinquent.  He  says,  that  it  is  dam- 
num  absque  injuria,  intimating  that  the  act  of  the 
defendant  does  not  constitute  a  wrong  in  its  legal 
sense  ;  and  then  proceeds  to  observe,  that  this  is 
agreeable  to  the  reasoning  of  the  civil  law,  "  Eum 
qui  nocentem  infamat  non  est  ceqaum  et  bonum  ob 
earn  rem  condemnari,  delict  a  enim  nocentium  cognita 
esse  oportet  et  expedilP  Notwithstanding  this, 
there  seems  t,o  be  some  difficulty  in  supporting  this 
justification,  on  the  ground  that  the  defendant's  act 
is  not,  in  contemplation  of  law,  a  wrong,  since,  as 
will  be  seen,  it  is  considered  as  such  in  the  crimi- 
nal proceeding,  and  if  the  act  be  justifiable  because 
it  confers  a  public  benefit,  it  must  be  so  to  all  legal 
purposes  ;  for  it  would  savour  too  much  of  paradox 
to  say,  that  in  respect  of  an  individual  claiming  a 
private  compensation,  the  act  is  innocent,  because 

*  3  Bl.Com.  12* 


176' 

it  is  beneficial  to  the  public,  but  that,  in  relation  to 
the  public  so  benefitted,  the  same  act  is  wrongful. 
It  may,  therefore,  be  more  consistent  to  consider 
the  plaintiff  as  having  excluded  himself  from  the 
protection  of  the  courts  by  his  own  misconduct, 
than  to  attribute  the  exemption  to  any  merit  apper- 
taining to  his  adversary. 

When  a  plaintiff  is  really  guilty  of  the  offence  im- 
puted, he  does  not  offer  himself  to  the  court  as  a 
blameless  party  seeking  a  remedy  for  a  malicious 
mischief,  his  original  misbehaviour  taints  the  whole 
transaction  with  which  it  is  so  closely  connected, 
and  precludes-  him  from  recovering  that  compen- 
sation to  which  an  innocent  person  would  be  en- 
titled. 

That  the  truth  was  a  good  justification,  does  not 
appear  to  have  been  doubted  in  the  case  of  words 
spoken  ;  in  respect  of  an  action  for  libel,  indeed, 
the  contrary  has  been  maintained ;  but  the  authori- 
ties upon  this  point,  which  are  very  scarce,  seem  to 
preponderate  much  in  favour  of  the  justification. 

In  the  case  of  the  King  v.  Roberts,*  Lord  Hard- 
wicke,  C.  J.  is  said  to  have  thus  expressed  himself 
on  a  motion  for  an  information  against  the  defendant : 
"  It  is  said,  that  if  an  action  were  brought,  the  fact, 
if  true,  might  be  justified  ;  but  I  think  that  is  a  mis- 
take, such  a  thing  was  never  thought  of  in  the  case 
of  Harman  v.  Delany.f  I  never  heard  such  a  jus- 
tification in  an  action  for  a  libel  even  hinted  at,  the 
law  is  too  careful  in  discountenancing  such  practices ; 
all  the  favour  that  1  know  truth  affords  in  such  a 

*  Br.  M.  and  G.  2.  MSS.  3  Bac.  Ab.  455.  Dig.  Law,  Lib.  16.  Sel.  Ni.  PrL 
1st  Ed.  929. 

•  Str.  89S- 


177 

case  is,  that  it  may  be  shown  in  mitigation  of  da- 
mages ;  and  of  the  fine  in  an  indictment  or  informa- 
tion." 

And  in  another  case,  it  was  said  by  Lee,  C.  J> 
(upon  the  trial  of  the  defendant  upon  an  informa- 
tion,) that  it  had  always  been  holden  that  the  truth 
of  a  libel  could  not  be  given  in  evidence  by  way  of 
justification;  because,  where  the  person  charged 
with  any  crime  is  guilty,  he  ought  to  be  proceeded 
against  in  a  legal  course,  and  not  reflected  upon  in 
such  a  manner.  In  the  King  v.  Bickerton,f  the 
Chief  Justice t  observed,  (upon  a  motion  for  a  cri- 
minal information,)  that  though  truth  be  no  justifica- 
tion for  a  libel,  as  it  is  for  defamatory  words,  yet  it 
would  be  sufficient  cause  to  prevent  the  extraordi- 
nary interposition  of  the  court. 

In  the  two  last  cases,  the  dicta  of  the  learned 
Judges  cannot  but  be  understood  as  spoken  with 
reference  to  the  criminal  proceeding  before  them, 
and  therefore  as  no  authorities  in  respect  of  an  ac- 
tion.— On  the  other  hand,  Hobart,  C.  J.  in  the  case 
of  Lake  v.  Hatton,||  said,  that  a  libel,  though  the 
contents  be  true,  may  be  justified  in  an  action  upon 
the  case. 

And  Holt,  C.  J.  laid  it  down  expressly,  that  "  A 
man§  may  justify  in  an  action  for  words  or  for  a 
libel,  otherwise  in  an  indictment." 

In  the  case  of  J.  Anson  v.  Stuart,  f  the  truth  was 
pleaded  in  bar  of  the  action  for  written  slander, 
and  no  objection  was  made,  or  exception  taken, 
either  by  the  court  or  the  plaintiff's  counsel,  to  the 

*  Sel.  Ni.  Pri.  1st  Ed.  929.  t  Str.  498. 

J  Sir  J.  Pratt.  ||  Hob.  Rep.  25S. 

6  11  Mod.  99.  ^  IT.  R.  748. 

23 


17» 

defendant's  right  to  avail  himself  of  a  defence  of 
that  nature.  (1) 

Sir  William  Blackstone  seems  to  have  been  of 
opinion,  that  the  truth  was  a  good  justification  in 
case  of  an  action  for  libel ;  since,  after  asserting  that 
it  is  a  good  defence  in  case  of  slander  spoken,*  he 
adds,  "  What  was  said  with  regard  to  words  spoken, 
will  also  hold  in  every  particular  with  regard  to  li- 
bels by  printing  or  writing,  and  the  civil  actions 
consequent  thereupon. f 

With  respect  to  an  action  for  Scandalum  Magna- 
turn,  it  was  resolved  in  the  Earl  of  Northampton's 
case,t  that  "  the  publishing  of  false  rumours,  either 
concerning  the  king  or  of  the  high  grandees  of  the 
realm,  was  in  some  cases  punishable  by  the  Com- 
mon Law ;  but  of  this  were  divers  opinions.  Yet 
it  was  resolved  in  general,  that  touching  the  matter 
and  quality  of  the  words,  that  they  ought  to  be  false 
and  horrible." 

North,  C.  J. II  was  of  opinion,  that  under  the 
statute,  the  defendant  could  not  justify  in  an  action 
for  scandalum  magnatum.  But  both  Atkins  and 
Scroggs,  justices,  thought  differently  ;  and  the  latter 
held,  that  the  words  in  the  principal  case  might  have 
been  justified  by  showing  the  special  matter  either 
in  pleading  or  evidence. 

And  in  Lord  Cromwell's  case,§  the  defence  in 
such  an  action  seems  to  have  been  considered  on 


*  3B1.  Com.  125. 

t  See  also  3  Wood.  1S2.  3  151.  Coin.  125.  14th  ed. ;  and  Selwyp's  Mi.  Pri.  1st 
ed.  929. 
'    t  12  lien.  .133.  ||  2  Mod.  150.  §  1  Co.  13. 


(1)  Van  A'*w  v    ffamillott,    L9  Johns.  Rep.  349. 


the  same  footing  with  a  common  action  tor  slander. 
The  general  rule,  therefore,  seems  to  be,  that  in 
action  for  words,  their  truth  is  a  good  justification. 

The  plaintiff'  was  charged  as  accessary  to  a  fe- 
lony, the  principal  having  been  acquitted  ;  and  it 
was  held  competent  for  the  defendant  to  go  into 
evidence  to  prove  his  guilt,  because  what  had  passed 
between  others  could  not  affect  him. 

Where  the  words  imputed  a  charge  of  murder, 
for  which  the  plaintiff  had  been  tried  and  acquitted, 
it  was  held  that  the  defendant  might  justify  special- 
ly, and  that  the  truth  of  such  plea  might  be  tried.* 
And  it  has  been  said,  that  where  the  defendant  jus- 
tifies specially,  by  pleading  the  truth  of  a  capital  ofj 
fence  imputed  to  the  plaintiff*,!  on  such  issue  being 
found  against  the  plaintiff,  he  may  be  put  upon  his 
trial  for  the  offence  without  the  intervention  of  a 
grand  jury.(l) 

The  justification  must  be  pleaded,  and  proved 
with  great  precision.  Thus,  if  the  defendant  tax 
the  plaintiff  with  having  feloniously  stolen  a  sum  of 
mone}r,  it  will  be  no  justification  that  the  plaintiff" 
had  in  fact:}:  stolen  some  other  personal  chattel.(2) 

So,  where  the  defendant  said  of  a  counsellor  at 
law, ||  "  You  are  a  paltry  lawyer,  and  use  to  play  on 
both  hands."  The  defendant  justified  as  to  the 
latter  words,  that  the  plaintiff  had  devised  certain 
articles  against  F.  R.  concerning  misdemeanors 
supposed  to  have  been   done  by  him,  and  after- 


*  England  v.  Bourkc,  3  Esp.  R.  80.  t  3  Esp.  K.  133.     Cook  v.  Field 

l|Cro.  J.  676.  ||  Cro.  J.  267. 

(1)  Resp.  v.  Davis,  3  Yeates,  129. 

(2)  Frederitze  v.  Odmwalder,  2  Yeates,  243.  .Andrews  v.  Vanduzer.  11  Johrv 
Rep.  38.        v 


ISO 

ward  promised  F.  R.  that  he  should  not  be  molest- 
ed  by  reason  of  the  said  articles  ;  and  yet,  notwith- 
standing, by  the  procurement  of  others,  the  plaintiff 
endeavoured  to  prosecute  F.  R.  upon  the  said  arti- 
cles, before  the  chancellor  and  commissioners  of  the 
Archbishop  of  Canterbury  ;  and  the  plea  was  held 
bad  on  demurrer. 

No  suspicion,  however  strong,  will  amount  to  a 
justification.* 

Neither  is  common  fame  any  ground  for  justify- 
ing an  extra-judicial  charge.f(l) 

In  Cuddington  v.  Wilkins,t  winch  was  an  action 
tor  publishing  these  words  of  the  plaintiff,  "  He  is 
a  thief;"  the  defendant  pleaded,  that  the  plaintiff 
had  been  guilty  of  stealing  six  sheep.  The  plaintiff 
replied,  that  after  the  felony,  and  before  the  publi- 
cation of  the  words,  he  had  been  pardoned  by  a 
general  pardon.  Upon  a  demurrer,  this  replication 
was  holden  to  be  good,  inasmuch  as  the  guilt,  as 
well  as  the  punishment,  is  taken  away  by  a  pardon. 
And  it  was  held,  that  it  makes  no  difference  in  such 
ease,  whether  the  pardon  be  general  or  special,  of 
which  the  defendant  might  have  been  ignorant,  for 
that  every  person  who  publishes  slanderous  words 
does  it  at  his  peril. 

But  it  was  said,  that  if  he  had  been  convicted  and 
pardoned  afterward,  it  would  be  otherwise. 

But  a   pardon   after   conviction  of  perjury  will 
not  restore  the  perjured  person  to  his  credit. || 

*  Powell  v.  Plun&ett,  Cro.  Car.  52. 
tHutt.  13.     Bridg.62.  Brownlow  2.  I  Hob.  81.  I  Sid.  9!*. 


(1)  Nor  opinion.  Brooks  v.  Brmixx,  8  John?.  Rep   356. 


It  has  long  been  settled,*  that  the  truth,  if  relied 
upon  as  a  justification,  or  even  in  mitigation  of  dama- 
ges, must  be  pleaded.  And  since  the  degree  of 
certainty  and  precision  necessary  to  complete  a  jus- 
tification of  this  nature  is  inseparably  connected  with 
the  form  and  rules  of  pleading,  further  remarks 
upon  this  topic  will  be  reserved  for  the  division  in 
which  the  technical  mode  of  framing  the  plea  is  con- 
sidered. 

•*  Str.  120Q. 


183 


CHAPTER  X. 


Of  Publications  made  in  the  course  of  Parliamentary 
or  Judicial  Proceedings. 

It  may  next  be  considered,  how  far  a  person  is 
protected  from  the  effect  of  words  published  in  the 
course  of  parliamentary  or  judicial  proceedings. 

Here  a  distinction  naturally  suggests  itself,  be- 
tween cases  where  a  party  is  by  law  called  upon  to 
execute  a  public  duty,  and  those  where  his  act 
is  merely  voluntary.  Under  the  former  division 
may  be  classed  members  of  either  house  of  parlia- 
ment, and  judges,  jurors,  and  witnesses,  in  any  of 
our  courts  of  justice.  Under  the  latter,  petitioners 
or  suitors,  their  counsel  and  attorneys,  who  are 
constrained  by  no  legal  obligation  to  apply  for  the 
redress  of  grievances  on  the  behalf  of  themselves  or 
their  clients,  but  who  are  nevertheless  by  law  in- 
vited to  prefer  their  complaints  for  the  purposes  of 
justice. 

In  the  first  place,*  it  seems  that  no  member  of 
either  house  is  in  any  shape  responsible  in  a  court 
of  justice  for  anything  said  in  that  house,  however 
offensive  the  matter  may  be  to  the  feelings,  or 
detrimental  to  the  interest  of  any  individual  ;f(l)  for 

•    1   F.sp.  R.  22G. 

t  By  4  Hen.  VIII.  c.  8.    members   of  parliament   arc   protected   from  all 


(1)   Even  though  the  words  be  spoken  maliciously.    Coffin  v.  Coffin,  4  Mas* 
Rep.  I. 


1S:3 

policy  requires  that  those  who  are  by  the  constitu- 
tion appointed  to  provide  for  the  safety  and  welfare 
of  the  public,  should,  in  the  execution  of  their  high 
functions,  be  wholly  uninfluenced  by  private  consid- 
erations. Accordingly,  in  such  cases,  (as  has  been 
asserted  by  a  high  authority,*)  courts  of  law  pos- 
sess no  jurisdiction.  But  the  privilege  does  not 
extend  beyond  the  walls (2)  of  the  house  to  which 
the  member  belongs  ;  and  a  peer,  who  publishes! 
libellous  matter  in  the  public  prints,  as  having  con- 
stituted part  of  his  speech  in  parliament,  is  as  open 
to  an  action  or  prosecution  as  any  private  indivi- 
dual.^) 

The  same  rule,  as  to  impunity,  suggested  and  go- 
verned by  similar  principles,  applies  to  judges,  ju- 
ries, and  witnesses,  in  respect  of  any  thing  published 
by  them  in  the  course  of  a  judicial  proceeding. 

Certain  charges  having  been  preferred  by  the 
plaintiff  against  an  officer  of  his  own  regiment,^  the 
court  martial,  after  acquittal,  subjoined  the  follow- 
ing declaration : 

(•barges  against  them  for  any  thing  said  in  either  house. —  And  this  is  fiuthei 
declared  in  the  Bill  of  Rights.    1  W.  M.  st.  2.  c.  2.    See  1  Bl.  C.  161.  (4) 

*  Lord  Kenyon,in  the  King  v.  Lord  Abingdon.     1  £sp.  Rep.  22G. 

UEsp.  R.  226.  I2N.IL  311. 

(2)  It  extends  to  protect  the  member  when  sitting  on  a  committee  in  a  lob- 
by, or  in  convention  of  the  two  houses  out  of  the  Representatives'  chamber. 
Coffin  v.  Coffin. 

(3)  The  Kin?  v.  Crcsvy,  Esq.    1  Man.  and  Sehv.  273. 

(4)  Con.  U.  S.  Art.  1.  sect.  6.  Const,  of  Maine,  Art.  4.  sect.  8.  Const.  A*. 
Hampshire,  pt.  1.  Art.  30.  Const.  Massachusetts,  pt.  1.  sect.  21.  Const.  Con- 
necticut, Art.  3.  sect.  10.  Const.  Vermont,  Art.  14.  Const.  Pennsylvania,  Art. 
1.  sect.  17.  Const.  Delaware,  Art.  2.  sect.  11.  Const.  Maryland,  Deel.  of 
Rights,  sect.  3.  Const.  Georgia,  Art.  1.  sect.  11.  Const.  Louisiana,  Art.  2. 
sect.  20.  Const.  Kentucky,  Art.  2.  sect.  24.  Const.  Ohio,  Art.  1.  sect.  13. 
Const.  Tennessee,  Art.  1.  sect.  10.  Const.  Indiana,  Art.  3.  sect.  13.  Const. 
Minors,  Art.  2.  sort.  12. 


184 

"  The  court  cannot  pass,  without  observation, 
the  malicious  and  groundless  accusations  that  have 
been  produced  by  Captain  J.  against  an  officer 
whose  character  has,  during  a  long  period  of  ser- 
vice, been  so  irreproachable  as  Colonel  Stewart's  ; 
and  the  court  do  unanimously  declare,  that  the  con- 
duct of  Captain  J.  in  endeavouring  falsely  to  calum- 
niate the  character  of  his  commanding  officer,  is 
most  highly  injurious  to  the  good  of  the  service." 
For  this  the  plaintiff  brought  his  action  against  Sir 
J.  Moore,  the  president  of  the  court  martial.  Upon 
the  trial  of  the  cause  before  Sir  J.  Mansfield,  C.  J. 
it  appeared,  that  the  supposed  libel  formed  part  of 
the  opinion  of  the  court,  delivered  by  the  defendant 
to  the  Judge  Advocate,  for  the  purpose  of  being 
submitted  to  the  king,  and  immediately  followed  the 
declaration  of  the  opinion  of  the  court  martial. — 
"  That  he,  the  aforesaid  Colonel  Richard  Stewart, 
is  not  guilty  of  either  of  the  charges,  and  the  court 
do  most  fully  and  honourably  acquit  him."  The 
plaintiff  was  nonsuited. 

And  afterward  a  new  trial  was  refused,  on  the 
o-round  that  the  words  complained  of  formed  part 
of  the  judgment  of  acquittal. 

So  it  is  held,  that  no  presentment  by  a  grand  jury 
can  be  a  libel,*  not  only  because  persons  who  are 
supposed  to  be  returned  without  their  own  seeking, 
and  are  sworn  to  act  impartially,  shall  be  presumed 
to  have  proper  evidence  for  what  they  do ;  but  also, 
because  it  would  be  of  the  utmost  ill  consequence 
any  way  to  discourage  them  from  making  their  in- 

*  Bac.  Ab.  tit.  Libel,  455.    Mq.  627.     Haw.  P.  C.  o.  73.  s.  8.    See  also  the 
observations  of  the  court  in  Johnson  v.  Sutton,  1  T.  R.  4D3,  510,  784, 


185 

quiries  with  that  freedom  and  readiness  which  the 
public  good  requires. 

Several  of  the  authorities  in  the  books  cited  re- 
late to  cases  of  criminal  prosecution  ;  but  the  rea- 
sons and  principles  are  equally  forcible,  when  ap- 
plied to  a  civil  action,  since  the  same  policy  in  both 
cases  opposes  itself  to  the  calling  in  question  the 
motives  of  the  parties. 

Witnesses,  like  jurors,  appear  in  court  in  obe- 
dience to  the  authority  of  the  law,*  and  therefore 
may  be  considered,  as  well  as  jurors,  to  be  acting 
in  the  discharge  of  a  public  duty ;  and  though  con- 
venience requires  that  they  should  be  liable  to  a 
prosecution  for  perjury  committed  in  the  course  of 
their  evidence,  or  for  conspiracy  in  case  of  a  com- 
bination of  two  or  more  to  give  false  evidence,  they 
are  not  responsible  in  a  civil  action  for  any  reflec- 
tions thrown  out  in  delivering  their  testimony.(l) 

The  plaintiff  brought  an  actionf  against  one  L., 
and  the  defendant  being  produced  as  a  witness  at 
the  trial,  gave  evidence  that  the  plaintiff  was  a  com- 
mon liar,  and  so  recorded  in  the  Star-chamber ;  by 
reason  whereof  the  jury  gave  the  plaintiff  small  da- 
mages. After  verdict  for  the  plaintiff  for  this  alleged 
slander,  it  was  moved  in  arrest  of  judgment,  that 
the  action  did  not  lie  ;  for  if  it  did,  every  witness 
might  be  charged  upon  such  a  suggestion,  and  judg- 
ment was  given  for  the  defend  ant.  t 

*  See  2  Inst.  228.  2  Rolls  Rep.  193.  Pal.  144.  1  Vin.  A.  387.  Cro. 
Eliz.  230. 

t  Brownlow.  2.     Harding  v.  Bulman.     Hast.  11. 

J  It  has  been  doubted  whether  a  preconcerted  scheme  for  taking  away  the 
life  of  another  by  false  evidence,  fpr  the  sake  of  obtaining  a  statutable  reward 
upon  conviction,  amounts,  when  carried  into  effect,  to  the  crime  of  murder. — 
See  Leach's  C.  C.  L.  52.     Foster  130. 

M)   1  Bin.  186. 
<24 


186 


With  respeet  to  petitioners  in  parliament,  am 
suitors  or  prosecutors  in  courts  of  law,  it  has  been 
held,  that  no  proceeding,  according  to  the  regular 
course  of  justice,  will  make  the  complaint  amount 
to  a  libel,  so  as  to  render  the  party  criminally  liable, 
on  the  ground  that  it  would  be  a  great  discourage- 
ment to  suitors  to  subject  them  to  public  prosecu- 
tions in  respect  of  their  applications  to  a  court  of 
justice  ;  and  that  the  chief  intention  of  the  law,  in 
prohibiting  persons  to  revenge  themselves  by  libels 
or  any  other  private  manner,  is,  to  restrain  them 
from  endeavouring  to  make  themselves  their  own 
judges,  and  to  oblige  them  to  refer  the  decision  of 
their  grievances  to  those  whom  the  law  has  ap- 
pointed to  determine  them.*(l) 

And  the  same  reasons  oppose  themselves  to  al- 
lowing an  action  to  be  maintained,  grounded  upon 
such  a  proceeding. 

In  the  case  of  Lake  v.  King,f  the  plaintiff  de- 
clared that  he  was  a  doctor  of  laws,  and  vicar-gene- 
ral to  the  Bishop  of  Lincoln ;  and  then  set  forth  the 
libel  complained  of,  which  charged  him  with  extor- 
tion, vexation,  oppression,  and  other  misdemeanors 
in  his  office. 

The  defendant  pleaded  that  the  matter  was  true, 

*  Dyer,  2S5.     2  Ins.  229.     2  Buls.  269.    Gotlb.  340.    Pal.  145. 188.    Vent. 
23.     Haw,  PI.  C  c.  73.  s.  8.     3  Bac.  Ab.  494. 
t  1  Saun.  131. 


(1)  Harris,  E3q.  v.  Huntington,  Esq.  2  Tyl.  Rep.  129.  So  also  accusation' 
preferred  to  the  Governor  of  a  state,  or  to  a  Council  of  appointment,  against  a 
person  in  office,  are  in  the  nature  of  judicial  proceedings,  and  the  accuser  is 
not  held  to  prove  the  truth  of  them.  Gray  v.  Pentland,  2  Serg.  and  Rawle,  23. 
Thorn  v.  Blanchard,  5  Johns.  Rep.  509.  But  it  is  no  justification  of  a  libel, 
that  the  defendant  signed  the  libellous  paper,  as  chairman  of  a  public  meeting 
of  citizens,  convened  for  the  purpose  of  deciding  on  a  proper  candidate  for  the 
office  of  governor,  and  that  it  was  published  by  order  of  such  meeting.  Lem» 
v.  Few,  1  Antb.  N.  P.  Rep.  75.    5  Johns.  Rep.  I. 


;*7 

ami  that  tlierefbre  he  procured  the  petition  (which 
was  the  libel  complained  of)  to  be  engrossed,  and 
delivered  to  the  committee  appointed  by  the  com- 
mons to  hear  and  examine  grievances  ;  and  that 
afterward,  for  the  better  manifestation  of  the  griev- 
ances contained  in  the  said  petition,  he  caused  the 
same  to  be  printed,  and  delivered  to  the  members 
of  the  committee.  The  plaintiff  demurred.  It  was 
agreed  on  all  hands,  that  the  exhibiting  the  petition 
to  the  committee  of  parliament  was  lawful,  and  that 
no  action  lay  for  it,  although  the  matter  contained  in 
the  petition  was  false  and  scandalous,  because  it  was 
in  the  summary  course  of  justice,  and  before  those 
who  had  power  to  examine  whether  it  was  true  or 
false. 

It  appears  that  this  case  was  much  considered,* 
and  that  the  judgment  was  given  for  the  defendant, 
after  it  had  depended  twelve  terms,  by  Hale,  C.  J. 
and  Twisden  and  Rainsford,  Justices,  on  the  ground 
that  it  was  the  order  and  course  of  proceeding  in 
parliament  to  print  and  deliver  copies  of  petitions, 
of  which  the  court  would  take  notice. 

But  it  was  held,  that  to  have  distributed  the 
printed  copies  to  any  but  members  of  parliament 
would  have  been  actionable. 

And  that,  in  general,  where  the  printing  was  not 
warranted  by  the  necessity  of  so  great  a  number  of 
copies,  to  print  them  would  be  actionable  ;f  but 
that,  in  the  principal  case,  the  printing  them  (which 
is  a  publishing  of  them  to  the  printers  and  compo- 
sitors) was  not  so  great  a  publication  as  to  have  so 
many  copies  transcribed  by  several  clerks. 

It  appears  to  iiave  been  urged  in  favour  of  the 

•    Lev.  241.      1-Mod.  53.     Sid.  414  +  SiJ.  -114. 


188 

plaintiff  that  the  complaint  was  made  to  a  court 
which  had  not  power  to  redress  it.  But  in  the  case 
of  Kemp  v.  Gee,*  it  was  resolved  by  the  House  of 
Commons,  that  Gee  was  guilty  of  a  breach  of 
privilege  in  suing  Kemp  and  others  for  a  libel,  sup- 
posed to  be  contained  in  a  petition  presented  to  the 
house  for  a  redress  of  grievances,  and  that  all  peti- 
tions to  them  were  lawful,  or  at  least  punishable 
by  themselves  only. 

So  no  action  lies  for  any  allegation,  pleading, 
or  other  matter,f  published  in  the  usual  course  of  a 
civil  or  criminal  proceeding  in  courts  of  justice. 
The  reason  for  which  is,  that  if  actions  should  be 
permitted  in  such  cases,  those  who  have  just  cause 
of  complaint  would  not  dare  to  complain,  for  fear  of 
infinite  vexation. :{:  And,  as  was  observed  by  Lord 
Mansfield,  C.  J.||  there  can  be  no  scandal  if  the  al- 
legation be  material ;  and  if  it  be  not,  the  court  be- 
fore whom  the  indignity  is  committed,  by  immate- 
rial scandal,  may  order  satisfaction,  and  expunge  it 
out  of  the  record,  if  it  be  upon  the  record. 

So,  where  the  plaintiff  declared  that  the  defen- 
dant, in  a  certain  affidavit  before  the  court,  had 
sworn  that  the  plaintiff  in  a  former  affidavit  had 
sworn  falsely  ;§  the  court  held  that  this  was  not  ac- 
tionable, for  that  in  every  dispute  in  a  court  of  jus- 
tice, where  one,  by  affidavit,  charges  a  thing  which 
the  other  denies,  the  charges  must  be  contradictory, 
and  there  must  be  affirmation  of  falsehood ;  and  this 
being  necessary  in  a  legal  proceeding,  no  action 
would  lie  for  it. 

*  9  Feb.  8.  W.  3.  See  C.  J.  Holt's  argument  in  the  rase  of  Ashby  v„ 
White.    Dig.  L.  L.  IS. 

\  1  Roll.  33.  }  4  Coke,  14.  ||  2  Burr.  Si 7  §  Astley  v 

Youne.  2  Burr.  917. 


So  in  trespass,*  if  the  defendant,  in  his  plea  ot 
justification,  falsely  aver  that  the  plaintiff  was 
bankrupt,  and  that  the  defendant  had  a  commis- 
sion upon  the  statute,  by  virtue  of  which  those 
goods  were  delivered  to  him ;  yet  the  plaintiff,  for 
the  words,  cannot  maintain  an  action. 

In  Weston  v.  Dobniet,f  the  plaintiff  declared, 
that  there  was  a  suit  in  the  spiritual  court  between 
one  A.  and  the  defendant,  wherein  A.  produced 
the  now  plaintiff  as  a  witness  ;  that  the  defendant 
having  a  day  given  to  except  against  the  witnesses, 
put  in  his  exceptions  in  writing,  alleging,  that  the 
now  plaintiff,  was  not  a  competent  witness,  and  that 
there  ought  not  any  credit  to  be  given  unto  him, 
because  he  was  perjured.  Whereupon  the  plain- 
tiff (pending  the  suit)  brought  the  action  for  this 
scandal ;  but  the  whole  court  held  that  the  action 
was  not  maintainable,  because  the  proceeding  was 
in  the  common  course  of  justice,  and  not  ex  mi- 
litia.(l) 

And  in  criminal  prosecutions,  it  seems  perfectly 
established,  that  no  action  will  lie  for  any  distinct 
matter  disclosed  in  the  course  of  such  proceeding, 
but  that  the  party  must  seek  his  remedy  lor  a  ma- 
licious and  groundless  prosecution,  either  by  writ 
of  conspiracy  or  by  a  special  action  on  the  case, 
founded  upon  the  whole  of  the  circumstances. f 

Sir  Richard  Buckley;  brought  an  action  against 
Owen  Wood,  for  exhibiting  a  bill  against  him  in 
the  Star  Chamber,  and  charging  him  with  several 

*  Cro.  J.  432.  t  3  B!.  Com.  12G.    10  Mod.  210.  219.  200.    Str.  691. 

I  4  Co.  14. 


(1)   See  Jarvii  v.  Hatheicav,  3  Johns.  Rep.  179.    JWMillnn  v.  Birch,  l  Binr. 
178 


matters  examinable  in  that  court ;  and  charging  him 
further,  that  he  was  a  maintainer  of  pirates  and 
murderers,  and  a  procurer  of  pirates  and  murderers, 
which  offences  were  not  determinable  in  the  Star 
Chamber. 

And  it  was  resolved  by  the  whole  court,  that  for 
any  matter  that  was  contained  in  the  bill  that  was 
examinable  in  the  said  court,  no  action  lies,  although 
the  matter  be  merely  false,  because  it  was  in  the 
course  of  justice ;  and  that  this  agreed  with  the 
judgment  before  given  in  Cutler  v.  Dixon.*  But 
it  was  also  resolved,  that  for  the  words  not  examin- 
able in  the  Star  Chamber,  an  action  on  the  case 
lies,  for  that  cannot  be  in  a  course  of  justice  ;  and 
that  if  such  matter  might  be  inserted  in  bills  in  so 
high  a  court  to  the  great  slander  of  the  parties,  and 
they  cannot  answer  it  to  clear  themselves,  nor 
have  their  action  as  well  to  clear  themselves,  as  to 
recover  damages  for  the  great  injury  and  wrong 
done  them,  great  inconvenience  would  ensue. 

That  by  law,  no  murder  or  piracy  could  be  tried 
by  bill,  but  by  indictment  only  ;  and  therefore,  that 
the  defendant  had  not  only  mistaken  the  proper 
court,  but  the  manner  and  nature  of  the  bill  had  not 
any  appearance  of  a  suit  in  the  ordinary  course  of 
justice. 

But  that  if  a  man  brought  an  appeal  of  murder 
returnable  in  the  common  pleas,  no  action  would 
Me  ;  for,  though  the  writ  was  not  returnable  before 
competent  judges,  yet  it  is  in  the  nature  of  a  lawful 
suit,  namely,  by  writ  of  appeal." 

The  first  partf  of  this  resolution   has  been  fre- 

*  Dver,  285.  t  2  Inst.  228.    Roll.  Ab.  87.  pi.  4.    Sir  W.  Jon.  431 


m 

quently  confirmed,  and  extends  to  all  proceedings 
in  the  regular  course  of  justice,  and  to  actions  for 
scandalum  magnatum.* 

The  defendant!  brought  a  writ  of  forger  of  false 
deeds  against  Lord  Beauchamp ;  and,  pending  the 
writ,  Lord  B.  brought  an  action  for  the  scandal. 
The  defendant  justified  by  his  having  the  said  writ 
before.  Upon  demurrer,  the  justification  was 
holden  to  be  good,  and  out  of  the  intendment  of  the 
law  and  statutes  of  slander. 

And  if  the  publication  be  made  in  the  course  of 
a  judicial  proceeding  it  does  not  appear  to  be  essen- 
tial to  the  justification  that  the  defendant  strictly 
observed  the  technical  mode  of  proceeding. 

The  plaintiff  declared,  that  he  made  an  affidavit 
to  have  the  defendant  bound  over  to  his  good  beha- 
viour ;  and  that  the  defendant,  in  the  hearing  of  the 
justices  and  officers  J  of  the  court  and  others  present, 
said,  "There  is  not  a  word  of  truth  in  that  affidavit, 
and  I  will  prove  it  by  forty  witnesses."  And  it  was 
held  that  the  words  were  justifiable,  being  in  a  judi- 
cial way.(l) 

And  the  same  rule  obtains  where  application  is 
made  in  the  usual  course  to  a  magistrate  or  other 
peace  officer; 

The  defendant  went  to  a  justice  of  the  peace 
for  a  warrant  against  the  plaintiff,  ||  for  stealing  his 
ropes.     The  justice  said,  "  Be  advised,  and  look 

*  2  Buls.  269.    2  Burr.  808.    3  Bac.  Ab.  492. 
t  Lord  Beauchamp  v.  Sir  R.  Croft,  Dyer,  285. 
j  Jo.  341.    Mar.  20.    Boulton  v.  Clapbam. 
11   Hutt.  113.    Mich  and  Can.     Rain  v.  Langley. 

(1)  See  Swearingen  v.  Birch,  4  Yeates,  322.  See  also  what  ie  said  by  Tilsrh- 
man,  C.  J.  2.  Serg.  and  Rawle,  471. 


192 

what  you  do  ;"  and  the  defendant  replied,  "  I  will- 
charge  him  with  flat  felony,  for  stealing  my  ropes 
from  my  shop."(l) 

The  court  agreed,  that  these  words  being  spoken 
to  a  justice  of  the  peace  when  he  came  for  his 
warrant,  which  was  lawful,  would  not  maintain  an 
action  ;  for  if  they  could,  no  other  would  come  to 
a  justice  of  the  peace  to  inform  him  of  a  felony. 

By  the  latter  resolution,  in  the  case  of  Buckley 
v.  Wood,*  the  court  decided  that  scandalous  mat- 
ter would  be  actionable,  if  exhibited  by  means  of 
an  improper  process,  and  in  a  court  which  had 
no  jurisdiction  over  the  subject  matter;  but  it 
plainly  appears  that  the  court  held,  that  both  im- 
propriety of  process  and  want  of  jurisdiction  must 
concur  to  deprive  the  defendant  of  his  justification  j 
for  it  was  expressly  said,  that  the  bringing'  a  writ 
of  appeal  of  murder  in  the  common  pleas  would 
not  be  actionable  ;  since,  though  they  wanted  juris- 
diction in  the  particular  instance,  yet  that  the  pro- 
ceeding by  writ  of  appeal  was  in  the  nature  of  a 
lawful  suit. 

In  Lake  v.  King,f  the  court  said,  that  notwith- 
standing what  was  reported  in  Buckley's  case,  it 
was  held  that  want  of  jurisdiction  will  not  make  a 
libel,  for  it  is  only  the  error  of  counsel. 

*  4  Co.  14. 

t  1  Vin.  Ab.  389.  note  to  pi.  67. 


(1)  Shock  v.  M'Chesney,  4  Yentcs,  507.  It  lias  been  held  in  England,  that 
an  action  for  defamatio  .  cannot  be  sustained  against  a  person  whose  property 
has  been  stolen,  and  who,  upon  reasonable  grounds  of  suspicion,  but  without 
any  application  to  a  magistrate,  charges  an  innocent  person  with  having  stoler 
't.    FoioUr  et  vx.  v.  Homer,  3  Camp.  Rep.  294.     Observe  the  facts  of  the  case 


Powel,  J.*  is  reported  to  have  said,  *'  I  have 
heard  my  Lord  Hale  say,  that  for  putting  matters 
in  a  bill,  of  which  the  court  hath  no  cognizance, 
action  does  not  lie  against  the  plaintiff,  though  in 
the  fourth  report  it  is  laid  down  otherwise. 

Sergeant  Hawkins,!  in  his  Pleas  of  the  Crown, 
observes,  "  It  has  been  holden  by  some,  that  no 
want,  of  jurisdiction  of  the  court,  to  which  such  a 
complaint  is  exhibited,  will  make  it  a  libel,  because 
the  mistake  of  the  court  is  not  imputable  to  the 
party,  but  to  his  counsel.  Yet,  if  it  shall  mani- 
festly appear,  from  the  whole  circumstances  of 
the  case,  that  a  prosecution  is  entirely  false,  mali- 
cious, and  groundless,  and  commenced  not  with  a 
design  to  go  through  with  it,  but  to  expose  the  de- 
fendant's character  under  a  show  of  legal  proceed- 
ing, I  cannot  see  any  reascJn  why  such  a  mockery 
of  public  justice  should  not  rather  aggravate  the 
offence  than  make  it  cease  to  be  one,  and  make 
such  scandal  a  good  ground  of  indictment  at  the 
suit  of  the  king,  as  it  makes  the  malice  of  the  pro- 
ceeding a  good  foundation  of  an  action  on  the  case, 
at  the  suit  of  the  party,  whether  the  court  had  juris- 
diction or  not."(l) 

From  these  authorities  it  may  be  collected  gene- 
rally, that  no  action  can  be  maintained  jor  any 
thing  said,  or  otherwise  published,  in  the  course 
of  a  judicial  proceeding,  whether  criminal  or  civil, 
though  for  a  malicious  and  groundless  prosecution, 

*  2Lut.  1571. 

t  PI.  Cr.  c.  73.  s.  8.     See  also  Serg.  Williams's  note,  1  Saund.  132. 

(1)  See  Gray  v.  Pentland,  2  Serg.  and  Rawle,  23.  Thorn  v.  Blanchard,  5 
Tohns.  Rep.  509.    Milom  v.  Burnsides  et  at.  1  Nott  and  M'Cord's  Rep.  426. 

25 


194 

an  action,  and  perhaps  an  indictment,  may  be  sup- 
ported, founded  on  the  whole  proceeding. 

It  must,  however,  be  recollected,  that  the  jus- 
tification does  not  extend  to  any  publishing  which 
the  usual  course  of  judicial  proceeding  does  not 
warrant.  Thus,  in  Lake  v.  King,  the  great  doubt 
was,  not  whether  the  exhibiting  the  petition  to  par- 
liament was  lawful  or  not,  but  whether  the  defend- 
ant was  warranted  in  printing  and  publishing  it  in 
the  manner  alleged  in  his  plea.* 

And  so,  in  the  case  of  Hare  v.  Meller,f  it  was 
adjudged  lawful  to  present  a  petition  to  the  queen, 
though  reflecting  upon  the  character  of  the  plaintiff; 
but  deemed  actionable  afterward  to  divulge  the  con  - 
tents  to  the  disgrace  of  the  person  intended. 

*  1  Saund.  132.  t  3  Lev.  169.     See  also  4  Rep.  14. 


I  !->/) 


CHAPTER  XI. 


Where  Parliamentary  or  Judicial  Proceedings  aire 
faithfully  reported. 

In  general,  impartial  and  correct  accounts  of  the 
proceedings  in  parliament,  or  in  the  courts  of  jus- 
tice, do  not,  in  legal  contemplation,  amount  to  a 
wrong,  so  as  to  render  the  party  publishing  them 
either  civilly  or  criminally  responsible. 

Upon  an  information  against  the  defendant,  for 
publishing*  "  Dangerfield's  Narrative,"  he  pleaded 
that  he  was,  at  the  time  of  the  publication,  Speaker 
of  the  House  of  Commons,  and  as  such,  had  aright 
to  publish  the  votes  and  acts  of  the  house,  and  that 
the  narrative  was  printed  and  published  as  parcel  of 
the  proceedings  ;  and  notwithstanding  this  the  court 
gave  judgment  for  the  king.f 

But  in  the  King  v.  Wright,  %  an  application  was 
made  to  the  Court  of  King's  Bench,  to  grant  a  cri- 
minal information  against  the  defendant,  for  print- 
ing and  publishing  a  libel  on  an  individual.  Upon 
the  defendant's  affidavit,  it  appeared  that  the  charge 
complained  of  was  a  paragraph  contained  in  the  re- 

*  R.  v.  Williams.  2  Show.  R.  471.  Comb.  18.     See  Sir  R.  Atkyns  on  the 
Power  of  Parliament. 

t  This  case  was  reprobated  by  Lord  Kenyon,  C  J.  and  Grose,  J.  giving 
judgment  in  the  Kin-  v.  Wright.  8  T.  R.  293. 
8  T.  R.  293. 


19t> 

port  of  the  Committee  of  Secrecy  of  the  House  of 
Commons,  a  literal  copy  of  which  he  had  published. 

After  hearing  counsel  on  the  part  of  the  applicant, 
the  information  was  refused.  Lord  Kenyon,  C.  J. 
observing,  "  As  this  was  a  true  copy  of  the  report 
of  the  House  of  Commons,  I  think  there  was  not 
the  least  pretence  for  the  motion  ;  the  application 
supposes  that  the  publication  is  a  libel,  but  it  is  im- 
possible to  admit  that  the  proceeding  of  either  of 
the  houses  of  parliament  is  a  libel." 

The  case  of  Sir  W.  Williams,  which  was  princi- 
pally relied  on,  happened  in  the  worst  of  times,  but 
that  has  no  relation  to  the  present  case.  There  the 
publication  was  the  paper  of  a  private  individual, 
and  under  pretence  of  the  sanction  of  the  House 
of  Commons,  an  individual  published  ;  but  this  is  a 
proceeding  by  one  branch  of  the  legislature,  and 
therefore  we  cannot  inquire  into  it. 

Grose,  J.  said,  "  On  looking  into  the  judicial  pro- 
ceedings of  this  court,  I  find  no  instance  of  such  an 
information  as  the  present ;  the  case  of  Sir  W.  Wil- 
liams is  most  like  this,  but  it  must  be  remembered, 
that  that  was  declared  by  a  great  authority  to  be  a 
disgrace  to  the  country." 

Lawrence,  J.  observed,  "  It  has  been  said,  that 
the  publication  of  the  proceedings  in  courts  of  jus- 
tice, when  reflecting  on  the  character  of  an  indivi- 
dual, is  a  libel ;  to  support  which  position,  the  case 
of  Waterfield  v.  the  Bishop  of  Chichester  has  been 
cited  ;*  but,  on  examining  that  case,  it  appears  that 
the  charge  there  was,  that  the  plaintiff  had  not  pub- 
lished n  true  account.     The  proceedings  of  courts 

*  2  Mod.  118. 


19? 

of  justice  are  daily  published,  some  of  which  highly 
reflect  on  individuals,  but  I  do  not  know  that  an  in- 
formation was  ever  granted  against  the  publisher  of 
them.  Many  of  these  proceedings  contain  no  point 
of  law,  and  are  not  published  under  the  authority  or 
the  sanction  of  the  courts,  but  they  are  printed  for 
the  information  of  the  public.  Not  many  years  ago, 
an  action  was  brought  in  the  Court  of  Common 
Pleas  by  Mr.  Currie,*  against  Walter,  the  proprie- 
tor of  the  Times,  for  publishing  a  libel  in  the  paper 
of  "  The  Times  ;"  which  supposed  libel  consisted 
in  merely  stating  a  speech  made  by  a  counsel  in  this 
court,  on  a  motion  for  leave  to  file  a  criminal  infor- 
mation against  Mr.  Currie.  L.  C.  J.  Eyre,  who 
tried  the  cause,  ruled  that  this  was  not  a  libel,  nor 
the  subject  of  an  action,  it  being  a  true  account  of 
what  had  passed  m  this  court ;  and  in  this  opinion 
the  Court  of  Common  Pleas  afterward,  on  a  motion 
for  a  new  trial,  all  concurred,  though  some  of  the 
judges  doubted  whether  or  not  the  defendant  could 
avail  himself  of  that  defence  on  the  general  issue  : 
'*  though  the  publication  of  such  proceedings  may 
be  to  the  disadvantage  of  the  particular  individual 
concerned,  yet  it  is  of  the  utmost  importance  to  the 
public  that  the  proceedings  of  courts  of  justice 
should  be  universally  known. 

"  The  great  advantage  to  the  country  in  having 
these  proceedings  made  public,  more  than  counter- 
balances the  inconveniences  to  the  private  persons 
whose  conduct  may  be  the  subject  of  such  proceed- 
ings. The  same  reasons  also  apply  to  the  proceed- 
ings in  parliament ;  it  is  of  advantage  to  the  public, 

*   1  B.  and  P.  525. 


19S 

and  even  to  the  legislature  besides,  that  true  ac- 
counts of  their  proceedings  should  be  generally  cir- 
culated, and  they  would  be  deprived  of  that  advan- 
tage, if  no  person  could  publish  their  proceedings 
without  being  punished  as  a  libeller. 

"  Though,  therefore,  the  defendant  was  not  au- 
thorized by  the  House  of  Commons  to  publish  the 
report  in  question,  yet,  as  he  only  published  a  true 
copy  of  it,  I  am  of  opinion  that  the  rule  ought  to  be 
discharged." 

But  in  Styles  v.  Nokes,*  it  was  observed  by  Lord 
Ellenborough,  C.  J.  and  Grose,  J.  that  it  must  not 
be  taken  for  granted  that  the  publication  of  every 
matter  which  passes  in  a  court  of  justice,  however 
truly  represented,  is,  under  all  circumstances,  and 
with  whatever  motive  published,  justifiable,  but  that 
doctrine  must  be  taken  with  some  grains  of  allow- 
ance. "  It  often  happens,"  said  Lord  Ellenborough, 
*'  that  circumstances,  necessary  for  the  sake  of  pub- 
lic justice  to  be  disclosed  by  a  witness  in  a  judicial 
inquiry,  are  very  distressing  to  the  feelings  of  indi- 
viduals on  whom  they  reflect.(l)  The  protection 
afforded  by  law  to  such  publications  does  not  how- 
ever, extend  beyond  a  plain  unvarnished  statement 
of  the  proceeding,  and  will  not  warrant  the  least 
misrepresentation  of  facts,  or  even  any  high  colour- 
ing of  the  circumstances  stated." (2) 

Lofieldf  having  recovered  in  an  action  against 

*  7  East,  493. 

f  Easter  Term,  5.  G.  2.  1732.  2  Barnard.  K.  B.  123.  The  King  v.  Lofield. 

(1)  And  see  Rex  v.  Creevy,  Esq.  1  Man.  and  Sehv.  273,  and  what  is  there 
said  by  Lord  Ellenborough  as  to  Currie  v.  Walter.  See  also  Rex  v.  Carlile,  3 
Bam.  and  Aid.  167. 

(2)  Thomas  v.  Croswell,  7.  Johns.  Rep.  272. 


199 

Bankcroft,  for  maliciously  charging  him  with  felon) 
and  for  procuring  him  to  be  arrested  on  suspicion  of 
the  same,  afterward  published  that  Bankcroft  had 
conspired  to  charge  him  with  this  felony,  and  that,  in 
vindication  of  his  character,  he  had  brought  an  ac- 
tion against  him  for  so  doing,  and  had  recovered 
1100/.  damages  against  him."  On  a  motion  for  a 
criminal  information,  the  court  said,  that  the  present 
advertisement  had  falsely  represented  the  fact,  for 
Lofield  did  not  bring  his  action  for  a  conspiracy,  but 
for  Bankcroft's  maliciously  charging  him  with  fe- 
lony, and  a  conspiracy  requires  an  infamous  judg- 
ment.    The  rule  was  made  absolute. 

It  has  been  held,  that  the  publication  of  matter 
contained*  in  depositions  before  a  magistrate  on  a 
criminal  charge,  is  not  justifiable,  the  evidence  being 
ex  parte,  and  the  disposition  made  by  the  prosecu- 
tor only.(l) 

A  still  stronger  reason  for  prohibiting  such  pre- 
mature statements  is,  that  they  induce  a  prejudice 
against  the  defendant,  and  tend  to  deprive  him  of 
the  benefit  of  a  fair  and  impartial  trial. 

The  printer,!  publisher,  and  editor  of  a  public 
newspaper,  were  indicted  for  publishing  a  para- 
graph, purporting  to  contain  the  examinations  before 
a  magistrate,  upon  a  charge  brought  against  the  pro- 
secutor by  Mrs.  Popple  well ;  the  publication  then 
proceeded  to  assume  the  truth  of  the  depositions, 
and  the  guilt  of  the  prosecutor,  and  to  pronounce 


ft.  and  Lee,  5  Esp.  123. 

The  King  v.  Fisher  and  others,  2  Camp.  563. 


(1)  The  King  v.  W.  Fleet,  1  Barn,  and  Aid.  379. 


200 

that  he  would  meet  with  the  reward  due  to  his 
villany. 

It  was  contended,  on  the  authority  of  several  of 
the  cases  above  cited,  that  the  publication  was  jus- 
tifiable, as  being  a  true  account  of  the  proceedings 
in  a  court  of  justice. 

But  Lord  Ellenborough,  C.  J.  said,  "  Trials  at 
law  fairly  reported,  although  they  may  occasionally 
prove  injurious  to  individuals,  have  been  held  to  be 
privileged.  Let  them  continue  so  privileged,  the 
benefit  the}r  produce  is  great  and  permanent,  and 
the  evil  that  arises  from  them  is  rare  and  incidental ; 
but  these  preliminary  examinations  have  no  such  pri- 
vilege, their  only  tendency  is  to  prejudge  those 
whom  the  law  still  presumes  to  be  innocent,  and  to 
poison  the  sources  of  justice.  It  is  of  infinite  im- 
portance to  us  all,  that  whatever  has  a  tendency  to 
prevent  a  fair  trial  should  be  guarded  against. 
Every  one  of  us  may  be  questioned  in  a  court  of 
law,  and  called  upon  to  defend  his  life  and  his  cha- 
racter ;  we  should  then  wish  to  meet  a  jury  of  our 
countrymen  with  unbiassed  minds  ;  but  for  this  there 
can  be  no  security,  if  such  publications  are  permit- 
ted."(l) 


(1)  See  what  is  said  by  Abbott,  J.  and  Holroyd,  J.  in  the  King  v.  Fleet, 


201 


CHAPTER  XII. 


In  the  two  classes  of  cases  immediately  preceding, 
the  presumption  of  law  is  conclusive  in  favour  of 
the  defendant's  innocence  of  intention.  There  is 
another,  in  which,  though  the  motive  of  the  party 
be  not  wholly  exempted  from  examination,  yet,  in 
consideration  of  the  character  in  which  he  has  acted 
or  assumed  to  act, — the  law  will  presume  in  his 
favour  in  the  first  instance,  and  require  the  plain- 
tiff to  rebut  the  presumption  in  some  particular 
mode. 

And  the  benefit  of  this  prima  facie  presumption 
enures  in  a  greater  or  less  degree  to  all  defendants, 
who  claim  an  interest  for  themselves  or  others  ;  as 
where  a  person  makes  an  extra-judicial  claim  to  an 
estate,  or  a  counsellor  speaks  on  behalf  of  his  client 
in  a  court  of  justice. 

To  those  who  act  in  a  friendly  character  toward 
the  defendant,  as  by  communicating  a  slanderous 
report,  and  the  author  of  it,  to  enable  him  to  obtain 
a  remedy. 

And  to  those,  in  general,  who  appear  to  act  in 
the  discharge  of  any  duty  which  the  convenience  or 
exigencies  of  society  call  upon  them  to  perform ; 
as,  where  a  master  gives  the  character  of  a  servant, 
or  a  critic  that  of  a  book,  for  the  information  and 

advantage  of  the  public. 

26 


202 

The  .nature  and  extent  of  the  presumption  of  law 
in  each  of  these  cases  will  next  be  considered,  and 
the  means  by  which  they  may  be  rebutted. 

And  first,  ivliere  a  party,  having  probable  cause, 
claims  any  title  or  interest. 

When  a  party  lays  claim  to  land  or  other  pro- 
perty, by  means  of  which  the  real  owner  is  pre- 
judiced, though  the  words  be  not  spoken  in  the 
ordinary  course  of  justice,  (in  which  case,  as  has 
already  been  seen,  no  action  would  be  maintainable) 
vet,  if  the  party  had  probable  cause  and  colour  for 
what  he  said,  no  action  is  maintainable,  although 
no  legal  claim  exist  in  fact.  And  the  reason  assign- 
ed for  this  by  Sir  E.  Coke  is,*  that  if  an  action 
should  lie  when  the  defendant  himself  claims  an 
interest,  how  can  any  make  claim  or  title  to  any 
land,  or  begin  any  suit,  or  seek  advice  and  counsel, 
but  he  should  be  subject  to  an  action  which  would 
be  inconvenient ;  and  that  this  was  agreeable  to  the 
opinion  in  Banister's  ease,f  that  no  action  lies  against 
one  who  publishes  another  to  be  his  villain,  without 
adding  something  by  way  of  threat,  which  produces 
special  damage. 

But  if  the  defendant  say,  J  that  J.  S.  has  a  better 
title  to  the  lands  than  the  tenant  in  possession,  and 
makes  no  pretence  of  title  in  himself,  an  action  lies, 
if  special  damage  follow  from  the  words. 

It  has  frequently  been  held,  that  not  only  a  gene- 
ral assertion  of  title  in  the  defendant  is  justifiable, 
but  that  a  specific  ground  of  claim,  as  under  a  lease, 

*  4  ltcp.  IS. 

t  Filz.  Action  sur  lc  Case,  1G  Bro.  Ac.  sur.  !e  Case,  90.  2  E.  4,  5.  a.  b.  15 
Eu.  4.  32.  a.  b.  22  E.  3.  1,  Conspiracy.  39  B.  3.  33.  43  E.  3.  20.  F.  N.  B. 
116.  b. 

T  Tenk.  247.  pi.  37. 


is  likewise  justifiable,  though  the  party  knew  he 
had  no  such  lease.  So  that  if  B.*  published  that 
he  had  a  lease  of  Blackacre  for  one  thousand  years, 
he  would  not  be  subject  to  an  action  for  slander, 
though  he  had  no  such  lease,  since  it  is  his  own 
title  ;  but  the  reason  and  principle  of  these  deci- 
sions appear  very  dubious,  for  though  it  may  be 
inconvenient  to  render  a  claimant  liabl  to  all  the 
consequences  of  his  claim  when  bona  fide  made, 
the  inconvenience  does  not  extend  to  the  case  of 
a  defendant,  who  asserts  a  fact  in  support  of  his 
title  which  he  knows  to  be  false.  And  such  a  doc- 
trine seems  directly  contradicted  by  the  case  of  Sir 
G.  Gerard  v.  Dickenson.f 

The  plaintiff  there  declared,  that  he  was  seized 
of  the  manor  and  castle  of  H.  by  purchase  from 
Lord  Audley,  and  that  he  was  about  to  demise  the 
castle  and  manor  of  H.  to  Ralph  Egerton  for  a 
term  of  twenty-two  years  ;  that  the  defendant  said, 
"I  have  a  lease  of  the  castle  and  manor  of  H.  for 
ninety  years,"  and  then  and  there  showed  and  pub- 
lished a  demise,  supposed  to  be  made  by  George 
Lord  Audley,  grandfather  to  the  said  Lord  Aud- 
ley, for  ninety  years,  to  Edward  Dickenson  her 
husband,  and  published  the  said  demise  as  a  good 
and  true  lease,  when,  in  fact,  the  lease  was  coun- 
terfeited by  her  husband,  and  the  defendant  knew 
it  to  be  counterfeited ;  by  reason  of  which  words, 
the  said  It.  E.  did  not  proceed  to  accept  the  plain- 
tiff's lease.    The  defendant,  in  her  plea,  denied  her 

*  Jenk.  217.     Cro.  E.   34.     Mo-  144.     Mo.  1SS.  410.    Roll.  Rep.   409.    4 
Rep.  18.    Yel.  89.    Cro.  Car.  140-    Cro.  J.  397,  393.  435.    1  Roll.  Tien.   2  14 
3  Buls.  75.    Pal.  529. 

»  4  Ben.  IB.    Cro.  Eli*.  1P7 


^04 

knowledge  of  the  forgery  ;  and  the  plaintiff  demur- 
red.    And  it  was  resolved, 

1.  That  if  the  defendant  had  affirmed  and  pub- 
lished that  the  plaintiff  had  no  right  to  the  castle 
and  manor  of  H.,  but  that  she  herself  had  right  to 
them,  in  that  case,  because  the  defendant  herself 
pretended  right  to  them,  although  in  truth  she  had 
none,  no  action  would  lie. 

2.  That  the  declaration  was  maintainable,  because 
it  was  alleged  that  the  lease  was  forged  and  coun- 
terfeited ;  and  yet  she,  against  her  knowledge, 
affirmed  and  published  that  it  was  a  good  and  true 
lease,  and  that  she  knew  of  the  plaintiff's  communi- 
cation with  11.  E.  to  let  him  the  land. 

From  this  case  it  appears  clear,  that  the  extra- 
judicial assertion  of  a  specific  fact,  against  the 
knowledge  of  the  party,  thereby  claiming  title, 
will  not  avail  as  a  justification.  On  the  contrary, 
so  much  strictness  has  been  required  in  case  of  such 
justifications,  that  where  the  defendant  had  said, 
"  I  know  one*  who  hath  two  leases  of  his  (the 
plaintiff's)  land,  who  will  not  part  with  them  at  any 
reasonable  rate."  It  was  held,  that  the  showing  two 
leases  to  have  been  made  to  the  defendant  himself 
was  not  sufficient. 

From  the  first  resolution  in  Gerard  v.  Dicken- 
son, it  seems  to  have  been  held,  that  a  general 
claim  of  title  would,  at  all  events,  have  been  justi- 
fiable ;  yet,  when  a  defendant,  for  the  mere  pur- 
pose of  vexation,  and  knowing  that  he  has  no  ground 
or  colour  of  claim,  prevents,  by  his  false  assertion, 
the  selling  or  letting  an  estate,  it  seems  to  make  no 

*   1  Vin.  A  be  651.  pf.  11.     Cio.  Eliz.  427. 


205 

difference  in  principle,  whether  he  effects  the  mis- 
chief by  a  general  claim,  or  by  the  alleging  a  spe- 
cific false  fact.      The  distinction   made  in  the  two 
resolutions  has  been  since  materially  contradicted — 
the  more  intelligible  rule  was  laid  down  in  the  case 
of  Goulding  v.  Herring,*  where  it  was  agreed,  that 
though  the  defendant  claims  title,  yet  if  it  be  found 
to  be  done  maliciously,  the  action  lies  ;  but  if,  upon 
evidence,  any  probable  cause  of  claim  appears,  it 
ought  not  to  be  found  maliciously.  (1)   And  accord- 
ing to  Rolle,  C.  J.f  "  If  I  Imve  colour  of  title  to  land, 
and  I  say  to  another,  I  have  better  title  to  the  land 
than  you,  yet  an   action  will  not  lie  against  me, 
though  my  title  be  not  so  good  as  the  title  of  the 
other  is." 

In  the  case  of  Smith  v.  Spooner,*  where  the 
owner  of  a  house  had  prevented  the  plaintiff,  his 
lessee  for  years,  from  disposing  of  the  remainder 
of  his  term,  by  falsely  asserting  that  he  had  no  title; 
the  court,  after  a  verdict  for  the  plaintiff,  refused  a 
rule  to  show  cause  why  there  should  not  be  a  new 
trial.  Lord  Ellenborough,||  C.  J.  observing,  "  The 
circumstances  of  the  defendant's  title  and  interest 
may  rebut  the  implication  of  malice,  but  here  it  was 
left  to  the  jury  to  say  whether  there  was  malice  or 
not."(2) 

But  where  an  attorney  to  a  creditor,  §  who   had 
previously  committed  an  act  of  bankruptcy,  stopt 

*  3Keb.  141.  t  Sty.  414. 

t  K.  B.  Mich.  1811.     (3  Taunt.  246.)  II  Mich.  Term.  1811. 

§  Hargrave  v.  Le  Breton,  Burr.  2422. 


(1)  J?ou>e  v.  Roach,  same  v.  Hoar,  1  Man.  and  Selw.  304.   See  Ross  v.  Pines. 
3  Call's  Rep.  568. 

(2)  See  Pilt  v.  Donovan,  1  Man.  and  Selw.  639. 


206 


the  sale  of  an  estate  previously  mortgaged  and 
assigned  to  the  plaintiff,  by  declaring  the  credi- 
tor's bankruptcy,  and  that  a  docket  had  been  made 
out  for  a  commission ;  it  turned  out  that  an  act  of 
bankruptcy  had  been  committed,  but  that  no  com- 
mission had  been  sued  out.  On  action  brought, 
it  was  held,  that  in  order  to  support  it,  there  should 
be  p  oof  of  malice,  either  express  or  implied  ;  that 
if  the  defendant  acted  bona  fide,  a;id  told  the  truth, 
he  did  no  more  than  his  duty ;  and  though  he  went 
beyond  what  was  strictly  true,  still,  if  there  was  no 
material  variance,  and  no  difference  made  with  re- 
spect to  the  plaintiff's  title,  the  action  was  not  main- 
tainable. 

So  a  person  acting  in  the  course  of  his  profes- 
sional duty,  is  entitled  to  the  beneficial  presump- 
tion arising  out  of  his  situation  and  the  interest  with 
which  he  is  vested,  till  the  malicious  intention  be 
proved. 

The  plaintiff*  brought  an  action  against  the  de- 
fendant for  these  words,  "  He  was  arraigned  and 
convicted  of  felony."  The  defendant  pleaded,  that 
the  plaintiff  at  another  time  brought  false  imprison- 
ing nt  against  J.  S.,  one  of  the  sergeants  of  London, 
who  justified  by  warrant  from  Sir  N.  M  ley, 
mayor  of  London,  for  arresting  him,  to  find  su  eties 
for  the  good  behaviour,  and  they  were  thereupon  at 
issue,  and  found  against  the  plaintiff,  who  thereupon 
brought  an  attaint.  And  that  the  defendant,  being 
consiliarius  et  peritus  in  lege,  was  retained  to  be  of 
counsel  with  the  petty  jury,  and  in  evidenc  at  the 
trial  in  London,  spike  those  words  in  the  declara- 

*  Brook  v.  Sir  Henry  Montague,  Cro.  J.  9f>. 


207 

iiou;  and  Yelverton,  and  Coke,  attorney-general, 
being  of  counsel  for  the  defendant,  the  court  resolv- 
ed that  the  justification  was  good  ;  for  a  counsellor 
in  law  retained,  hath  a  privilege  to  enforce  any  thing 
which  is  informed  unto  him  for  his  client,  and  to  give 
it  in  evidence,  it  being  pertinent  to  the  matter  in 
question,  and  not  to  examine  whether  it  be  true  or 
false  ;  but  it  is  at  the  peril  of  him  who  inform*  it,  for 
a  counsellor  is,  at  his  peril,  to  give  in  evidence  that 
which  his  client  informs  him,  being  pertinent  to  the 
matter  in  question  ;  otherwise,  action  on  the  case 
lies  against  him  by  his  client,  as  Popham  said,  but 
matter  not  pertinent  to  the  issue  or  the  matter  in 
question  he  need  not  deliver,  for  he  is  to  discern  in 
his  discretion  what  he  is  to  deliver,  and  what  not; 
and  although  it  be  false,  he  is  excusable,  being  per- 
tinent to  the  matter.  But  if  he  give  in  evidence  any 
thing  not  material  to  the  issue,  which  is  scandalous, 
he  ought  to  aver  it  to  be  true,  otherwise  he  is  pun- 
ishable ;  for  it  shall  be  intended  as  spoken  malicious- 
ly, and  without  cause,  which  is  a  ground  for  an  ac- 
tion. So,  if  a  counsellor  object  matter  against  a 
witness  which  is  slanderous,  if  there  be  cause  to 
discredit  his  testimony,  and  it  be  pertinent  to  the 
matter  in  question,  it  is  justifiable  what  he  delivers 
by  information,  though  it  be  false.  So,  where  it  is 
material  evidence  to  prove  him  a  person  fit  to  be 
bound  to  his  good  behaviour,  and  in  maintenance  of 
the  first  verdict :  therefore  his  justification  is  good.(l) 

(1)  Hodgson  v.  Scartett,  1  Barn,  and  Aid.  232.  where  the  subject  is  fully  dis- 
cussed. Sec  Vigours  v.  Palmer,  1  P.  A.  Brown's  Rep.  40.  But  it  is  no  justifi- 
cation of  a  slander  published  of  a  town  officer,  relative  to  his  official  conduct 
while  in  the  exercise  of  his  office,  that  the  slanderer  was  a  legal  voter  in  the 
town,  and  so  one  of  the  constituents  of  such  officer,  there  being  no  analogy 
between  such  a  case  and  legal  proceedings  in  a  course  of  justice.  Dodd  v. 
Henry,  9  Mass.  Rep.  262. 


208 

And  Coke  cited  a  case,*  where  a  clergyman,  in 
his  sermon,  recited  as  a  story  out  of  Fox's  Mar- 
tyrologie,  that  one  Greenwood,  being  a  perjured 
person  and  a  great  persecutor,  had  great  plagues  in- 
flicted on  him,  and  was  killed  by  the  hand  of  God ; 
whereas,  in  truth,  he  never  was  so  plagued,  and 
was  himself  present  at  that  sermon.  And  he  there- 
upon brought  his  action  upon  the  case,  for  calling 
him  a  perjured  person,  and  the  defendant  pleaded 
not  guilty ;  and  this  matter  being  disclosed  upon 
the  evidence,  Wray,  C.  J.  delivered  the  law  to  the 
jury :  that  it  being  delivered  but  as  a  story,  and  not 
with  any  malice  or  intention  to  slander  any,  he  was 
not  guilty  of  the  words  maliciously,  and  so  was  found 
not  guilty. f 

And  Popham  affirmed  it  to  be  good  law,  when  he 
delivers  matter  after  his  occasion  as  matter  of  story, 
and  not  with  any  intent  to  slander  any.  Where- 
fore, for  these  reasons,  it  was  adjudged  for  the  de- 
fendant. 

These  two  cases  afford  an  apt  illustration  of  this 
branch  of  the  law ;  and  the  former  points  out,  with 
great  precision,  both  the  duty  and  liability  of  a  pro- 
fessional advocate. 

Where  the  facts  asserted  are  pertinent  to  the 
cause,  and  suggested  by  the  client,  the  presump- 
tion of  law  will  be,  that  what  the  advocate  asserts  is 
said  out  of  regard  to  the  interests  of  his  client ;  but 
when  he  travels  out  of  his  way,  and  abuses  the  sit- 
uation in  which  he  stands  by  charges  and  invec- 
tives either  not  relating  to  the  cause  in  hand,  or,  if 
pertinent  to  the  issue,  not  suggested  by  those  from 

*  Cro.  Jac.  90. 

T  He  cited  14  H.  VII.  14.    20  H.  VI.  3-1. 


209 

whom  he  is  bound  to  receive  information,  he  for- 
feits his  privilege,  and  is  liable  to  answer  for  the 
false  charges  he  has  made  in  his  private  individual 
capacity. 

In  an  action*  for  a  libel  on  the  plaintiff,  in  his 
profession  as  a  solicitor,  the  libel,  as  set  out  in  the 
declaration  was  contained  in  a  letter  written  by  the 
defendant  to  Messrs.  Wright  and  Co.  bankers  at 
Nottingham,  and  charged  the  plaintiff  with  impro- 
per conduct  in  the  management  of  his  concerns.  It 
appeared,  however,  upon  the  trial,  that  the  letter  was 
intended  as  a  confidential  communication  to  those 
gentlemen,  and  that  the  defendant  himself  was  inter- 
ested in  the  affairs  which  he  supposed  to  be  misman- 
aged by  the  plaintiff.  After  the  cause  had  been 
opened  by  the  plaintiffs  counsel, 

Lord  Ellenborough,  C.J.  said,  if  the  letter  had 
been  written  by  the  defendant  confidentially,  and 
under  an  impression  that  its  statements  were  well 
founded,  he  was  clearly  of  opinion  that  no  action 
could  be  maintained.  It  was  impossible  to  say  that 
the  defendant  had  maliciously  published  a  libel  to 
aggrieve  the  plaintiff,  if  he  was  acting  bona  fide 
with  a  view  to  the  interests  of  himself  and  the  per- 
sons whom  he  addressed ;  and  if  a  communication 
of  this  sort,  which  was  not  meant  to  go  beyond 
those  immediately  interested  in  it,  were  the  subject 
of  an  action  for  damages,  it  would  be  impossible 
for  the  affairs  of  mankind  to  be  conducted.  His 
Lordship  referred  to  the  case  of  Cleaver  v.  Sarraude, 


*  M'Dougall  v.  Claridge,  1  C.  N.  P.  267. 

27 


2W 

tried  on  the  northern  circuit  while  he  was  at  the 
bar :  where,  in  an  action  like  the  present,  it  appear- 
ed that  the  letter  had  been  written  confidentially  to 
the  Bishop  of  Durham,  who  employed  the  plaintiff 
as  steward  to  his  estates,  to  inform  him  of  certain 
supposed  malpractices  on  the  part  of  the  plaintiff; 
upon  which  the  Judge,  who  presided,  declared  him- 
self oj  opinion  that  the  action  was  not  maintainable, 
as  the  defendant  had  been  acting  bona  fide,  and  the 
nonsuit,  which  he  directed,  had  been  acquiesced  in 
from  a  conviction  entertained  by  the  plaintiff's 
counsel  of  its  being  founded  in  law.(l) 

The  Attorney-general,  for  the  defendant,  said, 
that  his  client,  at  the  time  of  writing  the  letter,  was 
certainly  impressed  with  a  belief  of  the  truth  of  the 
charges" it  contained,  but  had  since  seen  reason  to 
believe  they  were  groundless ;  he  therefore  consent- 
ed to  withdraw  a  juror. 

So,  where  the  person  to  whom  the  communication 
is  made  is  interested,  as  in  the  case  of  Cleaver  v. 
Sarraude  above  quoted,  no  action  is  maintainable 
without  proof  of  express  malice. 

In  the  case  of  Dunman  v.  Bigg,*  the  plaintiff  was 
a  dealer  in  beer,  buying  it  of  a  brewer,  and  selling 
it  to  publicans.  Wishing  to  open  an  account  with 
the  defendant,  a  brewer,  one  Leigh,  became  his 
surety  for  the  price  of  such  quantities  of  beer  as 
should,  from  time  to  time,  be  supplied  to  him,  the 

*  Sittings  in  London  after  T.  T.  48  G.  3.  1  Camp.  R.  269,  cited. 


(1)  Godson  v.  Home,  3  Moore's  Rep.  223.  See  Fairmttn  v.  Ives,  5  Barn,  and 
Aid.  642,  S.  C.  1  Dowl.  and  Ryl.  252. 


211 

defendant  promising  to  inform  Leigh  oi'  any  delimit 
in  his  payments  made  by  the"plaintiff. 

After  the  parties  had  dealt  together  for  some  time, 
the  defendant  went  to  Leigh,  and  spoke  to  him  in 
very  opprobrious  terms  of  the  plaintiff,  saying,  that 
he  wished  to  cheat  him,  that  he  had ;  sent'baek  as 
unmerchantable,  beer  which  lie  himself  had  adulte- 
rated, that  he  was  a  rogue  and  a  rascal,  &c.  At  this 
period  there  was  a  sum  of  money  due  from  the 
plaintiff  to  the  defendant  in  respect  of  the  beer,  for 
which  Leigh  had  given  a  guarantee.  Lord  Ellen- 
borough,  C.  J.  said,  "  I  am  inclined  to  think^that 
this  was  a  privileged  communication.  Had  the  de- 
fendant gone  to  any  other  man,  and  uttered  these 
words  of  the  plaintiff,  they  certainly  would  have 
been  actionable  ;  but  Leigh,  to  whom  they  were 
addressed,  was  guarantee  for  the  plaintiff*,  and  the 
defendant  had  promised  to  acquaint  him  when  any 
arrears  were  due.  He  therefore  had  a  right  to  state 
to  Leigh  what  he  really  thought  of  the  plaintiff's 
conduct  in  their  mutual  dealings  ;  and  even  if  the 
representations  which  he  made  were  intemperate 
and  unfounded,  still,  if  he  really  believed  them  at 
the  time,  he  cannot  be  said  to  have  acted  malicious- 
ly, and  with  an  intent  to  defame  the  plaintiff.  To 
be  sure,  he  could  not  lawfully,  under  colour  and 
pretence  of  a  confidential  communication,  destroy 
the  plaintiff's  character,  and  injure  his  credit,  but  it 
must  have  the  most  dangerous  effects  if  the  commu- 
nications of  business  are  to  be  beset  with  actions  of 
slander.  In  this  case,  the  defendant  seems  to  have 
been  betrayed  by  passion  into  some  unwarrantable 
expressions  ;  I  will  therefore  not  nonsuit  the  plain- 


212 

till",  and  it  will  be  for  the  jury  to  say,  whether  these 
expressions  were  used  with  a  malicious  intention 
of  defaming  the  plaintiff,  or  with  good  faith  to 
communicate  facts  to  the  surety  which  he  was  inter- 
ested to  know.*(l) 

*  The  parties  agreed  to  withdraw  a  juror. — For  further  illustrations  of  this 
division  uf  the  subject,  see  R.  v.  Enes,  \ndr.  229.  Lord  Mordington's  case. 
It.  v.  Jenncaur,  3  Bac.  Abr.  452.  and  R.  v.  Baily,  Andr.  229. 

(1)  See  and  consider  Fowler  et  ux.  v.  Homer,  3  Camp.  Rep.  294„ 


J1J 


CHAPTER  XIII. 


Where  a  Person  repeats  the  Slander  invented  by 
another. 

A  person  repeating  the  slander  which  he  has 
heard  from  another,  vfili,  in  some  instances,  be  jus- 
tified, provided  lie,  at  the  time  of  repetition,  declare 
the  name  of  the  person  from  whom  he  heard  it.(l) 

This  defence  is,  however,  liable  to  be  rebutted, 
by  proof  that  the  defendant  knew,  at  the  time  of 
publication,  that  the  slander  was  without  founda- 
tion. 

The  doctrine  of  justification  by  hearsay  seems  to 
have  been  first  settled  in  the  Earl  of  Northampton's 


(1)  The  justification  depends  on  the  intent,  or  quo  animo,  with  which  the 
words,  with  the  name  of  the  author,  are  repeated.  Dole  v.  Lyon,  10  Johns, 
Rep.  447.  Binns  v.  M'Corkle,  2  P.  A.  Browne's  Rep.  79.  Leicis  v.  Waller,! 
Barn,  and  Aid.  605.  The  Earl  oj  Jsrorlliampton's  case  has  been  questioned  in 
England  (4  Barn,  and  Aid.  614,  615,)  and  in  New  York  (10  Johns.  Rep  449.) 
See  also  Miller  v.  Kerr,  2  M'Cord's  Rep.  285.  So  that  the  slander  was  com- 
municated to  the  defendant  by  a  third  person,  not  named  at  the  time  when  the 
slander  was  uttered,  may  be  given  in  evidence  under  the  general  issue  in 
mitigation  of  damages.  Kennedy  v.  Gregory,  Morris  v.  Duane,  1  Bimi.  88,  90,  n. 
These  cases  have  been  considered  by  Kent,  C  J.  (9  Johns.  Rep.  49.)  as  going 
beyond  the  English  rule.  See  also  Cook  v.  Barkley,  1  Penn.  Rep.  169,  and 
Coleman  v.  Southwick,  9  Johns.  Rep.  45.  The  Court  of  King's  Beneh  have 
recently  determined,  that  where  a  defendant  prints  and  publishes  thai  which 
would  not  have  been  actionable  as  oral  slander,  ;*  not  protected  by  giving  the 
name  of  the  author  at  the  time  of  publication.  M'Gregor  v.  Thwaites  ct  al 
1  Dowl.  and  Ryl.  695. 
Vide  also  Hersh  v.  Ringtoalt,  3  Yeates,  510. 


214 

case,*  which  was  upon  an  information  in  the  Star 
Chamber  for  scandalum  magnatum ;  and  the  resolu- 
tion contained  in  that  case  has  a  plain  reference  to 
the  rule  contained  in  the  statute  1  Westminster, 
which  enacts,  that  the  propagator  of  slander,  con- 
cerning the  grandees  of  the  realm,  shall  be  impri- 
soned until  he  give  up  the  author.  The  resolution 
was,  that  "if  A.  say  to  B.  *  Did  you  not  hear  that 
C.  was  guilty  of  treason?'  "  This  is  tantamount  to 
a  scandalous  publication. 

"  And,  in  a  private  action  for  slander  of  a  common 
person,  if  J.  S.  publish  that  he  hath  heard  J.  N. 
say,  that  J.  G.  was  a  traitor  or  thief,  in  an  action  on 
the  case,  if  the  truth  be  so,  he  may  justify ;  but 
if  J.  S.  publish  that  he  hath  heard  generally,  with- 
out a  certain  author,  that  J.  G.  was  a  traitor  or  thief, 
there  an  action  sur  le  case  lieth  against  J.  S.  for  this, 
that  he  hath  not  given  to  the  party  grieved  any 
cause  of  action  against  any,  but  against  himself, 
who  published  the  words,  although  that  in  truth  he 
might  hear  them,  for  otherwise  this  might  tend  to  the 
great  slander  of  an  innocent  person  ;  for,  if  one 
who  hath  Icesam  phantasiam,  or  who  is  a  drunkard, 
or  of  no  estimation,  speak  scandalous  words,  if  it 
should  be  lawful  for  a  man  of  credit  to  repeat  them 
generally,  without  mentioning  the  author,  that  would 
give  greater  colour  and  probability  that  they  were 
true,  in  respect  of  the  credit  of  the  repeater,  than  if 
the  author  himself  should  be  mentioned."! 

•  12  Rep.  132. 

t  The  court  referred  to  33  &  34  Ed.  1.  and  30  Ass.  pi.  10.  in  the  Exchequer. 
Mich.  18  Ed.  1.  Not.  4. 


^15 

In  Crawic -I'd  v.  Middleton,*  it  was  held,  that  it 
was  necessary  for  the  plaintiff  to  negative  the  fact 
of  the  defendant's  having  heard  the  words,  which 
he  pretended  to  repeat  as  spoken  by  another.  But 
in  the  case  of  Woolnoth  v.  Meadows,!  where  a 
similar  objection  was  taken,  it  was  said  by  the 
court,  that  Lord  Northampton's  case  was  a  com- 
plete answer  to  it. 

Since  the  consideration  of  the  indemnity  consists 
in  the  giving  the  plaintiff  a  certain  cause  of  action 
against  a  prior  propagator  of  the  slander,  if  the  dis- 
cfosure  made  fall  short  of  supplying  a  certain  cause 
of  action,  it  will  not  avail  as  a  justification. 

The  defendant*  speaking  to  the  plaintiff,  who 
was  a  tailor,  said,  "  I  heard  you  were  run  away." 
The  defendant  pleaded,  that  before  the  speaking 
of  the  words,  he  had  heard  and  been  told  by  one 
D.  Morris,  that  the  plaintiff  had  run  away,  for  which 
reason  he  spoke  the  words. 

Lord  Kenyon,  C.  J.  in  giving  judgment  for  the 
plaintiff  on  demurrer,  said,  "Whether  this  be  con- 
sidered on  the  authorities,  or  on  the  reason  of  the 
case,  the  justification  cannot  be  supported.     The 
Earl  of  Northampton's  case  is  precisely  in  point. 
If  a  person  say,  that  such  a  particular  man,  naming 
him,  told  him  a  certain  slander,   and  that  man,  in 
fact,  did  tell  him  so,  it  is  a  good  defence  to  an  action 
to  be  brought  by  the  person  of  whom  the  slander 
was  spoken  ;  but  if  he  assert  that  slander  generally, 
and  without  adding  who  told  it  him,  it  is  actionable. 
Then  it  is  said  it  is  sufficient  to  repel  such  action,  to 
disclose,  by  the  defendant's  plea,  the  person  who 

*  1  Lev.  82.  t  5  East,  463. 

1  Davis  v.  Lewis,  7  T.  R.  17. 


216 

told  him  that  slander ;  but  that  is  clearly  no  justifi- 
cation ;  after  putting  the  plaintiff  to  the  expense  of 
bringing  the  action,  he  can  only  impute  the  Zander 
to  the  person  who  utters  it,  if  the  latter  do  not  men- 
tion the  person  from  whom  he  heard  it  The  jus- 
tice of  the  case  also  falls  in  with  the  decisions  on 
the  subject.  It  is  just,  that  when  a  person  repeats 
any  slander  against  another,  he  should,  at  the  same 
time,  declare  from  whom  he  heard  it,  in  order  that 
the  party  injured  may  sue  the  author  of  the  slan- 
der.(l) 

So,*  where  the  defendant  said  of  the  plaintiff, 
who  had  been  proposed  as  a  volunteer  for  the  de- 
fence of  the  country,  "His  (the  plaintiff's)  cha- 
racter is  infamous,  he  would  be  disgraceful  to  any 
society.  Whoever  proposed  him  must  have  in- 
tended it  as  an  insult.  I  will  pursue  him,  and  hunt 
him  from  all  ;nciety.  II  his  nam.:  is  enrollc  i  in  the 
Royal  Acadenry,  I  will  cause  it  to  be  erased,  and 
will  not  leave  a  stone  unturned  to  publish  his 
shame  and  infamy.  Delicacy  forbids  me  from 
bringing  a  direct  charge,  but  it  was  a  male  child 
of  nine  years  old  who  complained  to  me."  The 
defendant  justified,  averring  that  a  male  child  of 
the  name  of  A.  B.,  of  the  age  stated,  did  complain 
to  the  defendant  of  an  unnatural  crime  before  that 
time  committed  by  the  plaintiff  upon  such  male 
child.  Upon  demurrer,  it  was  observed  by  the 
Court,  that  slanderous  words  can   in  no  case  be 

1  Woolnotb  v.  Meadows,  5  East,  463. 


(1)  Lane  v.  Howman,  1  Price's  Rep.  7G.  The  defendant  should  by  his  pica 
offer  himself  as  a  witness  to  prove  the  words  against  the  author.  M'Gregor  v. 
Thwaites  ct  al.     4  Dowl.  and  Ryl.  695. 


217 

ustitied  upon  the  report  of  another,  unless  the 
name  of  the  original  slanderer  be  given  at  the  time ; 
that  it  is  not  sufficient  to  disclose  the  name  for  the 
first  time  in  the  defendant's  plea ;  that  the  object  of 
the  rule  is  to  give  the  injured  person  a  certain  cause 
of  action  against  some  one.  But  that,  in  the  prin- 
cipal case,  no  action  could  have  been  maintained 
on  those  words  against  the  boy ;  whereas,  if  the 
defendant  had  named  the  boy  at  the  time,  and  re- 
peated truly  what  he  had  said  to  him,  the  plaintiff* 
would  have  had  his  action  against  the  boy. 

And  for  the  same  reason,  the  repeater  of  slander 
must  give  the  very  words  used  by  the  author ;  for 
the  plaintiff,  to  maintain  his  action,  must  state 
the  very  words  used  by  the  defendant,  and  prove 
them  as  stated ;  so  that,  unless  the  defendant  faith- 
fully repeat  the  original  slander,  the  plaintiff  will 
not  be  put  in  possession  of  a  certain  cause  of  ac- 
tional) 

The  defendant,*  in  a  written  affidavit,  deposed 
to  words  spoken  by  a  third  person  concerning  the 
plaintiffs,  who  were  merchants ;  and,  after  stating 
the  words  used  by  the  third  person,  added,  "  or 
words  to  that  purport  and  effect."  The  defendants 
justified,  stating,  that  they  did  hear  the  third  per- 
son publicly  declare  to  the  effect  following ;  and 
then  proceeded  to  state  the  communication  deposed 
to,  on  which  the  action  had  been  brought.  To 
this  justification  the  plaintiff  demurred  upon  seve- 
ral grounds  ;  and  the  court,  in  giving  judgment  for 
the  plaintiffs,  observed,  that  "  at  all  events,  in  order 

*  2  East.  425. 


(1)1  Binn.  S6,  Miller  v.  Kerr,  2  i\l '  Cord's  Kep.  287. 

28 


218 

to  justify  the  parties  reviving  the  slander  by  naming 
the  original  author  of  it,  they  must  so  disclose  the 
matter  as  to  give  the  plaintiff  a  certain  cause  of  ac- 
tion against  the  party  named.  Now  here  they  only 
state  that  the  other  uttered  such  words,  or  to  that 
effect ;  and  if  the  defendants,  when  called  as  wit- 
nesses to  support  the  action  against  the  author, 
could  only  prove  that  he  uttered  words  to  the  effect 
of  those  set  forth,  that  would  not  be  sufficient." 

From  these  cases  it  appears  to  be  the  general 
rule  of  law,  that  no  action  is  maintainable  against  a 
person  who  repeats  the  slander  of  another,  announ- 
cing at  the  same  time  the  name  of  his  author,  and 
the  identical  words  by  which  such  slander  was  first 
communicated,  so  as  to  afford  the  plaintiff  a  good 
ground  of  action.  The  principle  on  which  this  ex- 
emption rests  is  not  very  apparent.  One  reason  for 
not  allowing  the  action  is,  that  the  defendant  has 
o-iven  the  plaintiff  a  certain  cause  of  action  against  a 
third  person,  from  whom  the  whole  damage  sustained 
may  be  recovered.  But  it  may  frequently  happen 
that  though  the  plaintiff  may  have  a  certain  cause  of 
action,  he  may  be  no  nearer  the  actual  recovery  of 
a  compensation.  As  where  the  circumstances  of 
the  original  author  are  indigent,  his  situation  obscure, 
and  the  report  derives  both  its  publicity  and  nox- 
ious quality  chiefly  from  its  having  been  circulated 
through  the  medium  of  another ;  in  general,  even 
the  mere  repetition  of  the  slander  without  observa- 
tion, carries  with  it  some  additional  credit  from  the 
reporter. 

In  order  to  complete  the  ground-work  of  an  ac- 
tion, there  must  be,  as  already  frequently  observed, 
a  damage  sustained,  and  a  wrong  so  considered  bv 


219 

the  Law ;  whether  the  justification  in  the  present 
instance  arises  from  the  want  of  the  one  or  other, 
or  both  of  these  essentials,  it  may  not  be  easy  satis- 
factorily to  determine ;  but  since  the  conduct  of  a 
person  who  gives  up  the  author  of  an  injurious  re- 
port, and  enables  the  party  calumniated  to  reach  the 
author  of  the  calumny,  may  be  attributed  to  a  good 
and  friendly  motive,  that  circumstance  may  operate 
to  the  defendant's  advantage,  though  it  does  nol 
seem,  in  strictness,  to  warrant  any  thing  more  than 
a  prima  facie  presumption  in  his  favour. 

In  Maitland  and  others*  against  Goldney  and 
others,  one  ground  of  the  plaintiff's  action,  as  stated 
in  the  declaration,  was,  that  the  defendants  had  pub- 
lished the  slander  of  another,  well  knowing  that  other 
to  have  retracted  his  opinion  of  the  plaintiffs,  and  to 
have  confessed  his  error.  Upon  demurrer,  it  was 
not  argued  for  the  defendants  that  an  action  does  not 
lie  for  publishing  slander  originally  uttered  by  an- 
other, after  knowledge  by  the  defendant  that  it  was 
untrue,  but  an  objection  was  taken  to  the  mode  of 
pleading. 

In  giving  judgment  on  demurrer,  it  was  observed 
by  Ld.  Ellenborough,  C.  J.  that  "  In  order  to  mam- 
tain  this  species  of  action  it  is  necessary  that  there 
should  be  malice  in  the  defendant,  and  an  injury  to 
the  plaintiff,  and  that  the  words  should  be  untrue. 
By  the  first  count,  the  charge  in  substance  against 
the  defendants  is,  that  they  revived  and  published  an 
injurious  report  of  the  plaintiff  which  had  been  made 
by  another  person,  who  was  afterward  convinced 
that  he  had  uttered  the  words  hastily  and  rashly, 

*  2  East.  425. 


220 

4pd  that  the  defendants  did  this  with  a  full  know- 
ledge of  ail  those  circumstances.  All  the  several 
allegations  of  the  previous  reports,  the  subsequent 
explanation  of  the  plaintiffs  conduct  to  Guy,*  his 
satisfaction  with  it,  and  the  defendant's  knowledge 
of  it,  are  so  interwoven  by  the  pleading  with  the 
publication  of  the  libel,  that  they  could  not  be 
severed  from  it ;  so  that  the  plaintiffs  could  not  sus- 
tain that  count  by  proof  of  the  publication  alone, 
without  such  explanatory  circumstances.  The 
plaintiffs  could  not  entitle  themselves  to  recover  un- 
less all  were  proved.  The  count  then  contains  a 
charge  against  the  defendant,  that  they  published 
the  slander  with  a  knowledge  that  the  person  who 
had  originally  uttered  it  was  satisfied  that  it  was  un- 
true. The  fact,  therefore,  of  such  previous  utter- 
ing, was  merely  used  by  the  defendants  as  a  pretence 
for  publishing  the  same  slander,  that  shows  malice 
in  the  defendants,  and  an  injury  to  the  plaintiffs.'* 
Judgment  was,  however,  given  for  the  plaintiffs, 
not  on  the  ground  of  legal  malice  being  attribu- 
table to  the  defendants,  but  because  they  had  re- 
peated the  effect  of  the  slander,  and  not  the  very 
words. 

In  the  case  of  Gerrard  v.  Dickenson,!  it  was 
held,  that  slander  spoken  by  the  defendant  against 
his  own  knowledge,  made  him  liable  at  all  events, 
and  deprived  him  of  the  benefit  of  his  justification. 

It  is  difficult  to  carry  the  principle  of  exculpation 
in  this  case  further  than  this :  that  a  person  who, 
bona  fide,  repeats  the  scandal  of  another  for  the  pur- 
pose of  enabling  the  plaintiff  to  obtain  redress,  shall 

*  The  author  ef  the  slander.  4  Coke.  IS.  b 


221 

aot  be  liable  to  an  action  ;  but  neither  principle  noi 
precedent  warrants  the  repeating  slander  of  another 
which  the  repeater  knows  to  be  without  foundation, 
for  the  mere  purpose  of  vexation  to  the  plaintiff. 
On  the  contrary,  the  defendant's  conduct  is  pregnant 
with  malice,  and  therefore,  when  attended  with  de- 
triment to  the  plaintiff,  furnishes  the  two  great  es- 
sentials necessary  to  support  an  action.  And  upon 
this  ground  it  should  seem,  that  if  the  defendant,  by 
the  use  of  more  forcible  terms,  or  by  reducing  the 
slander  to  writing  or  print,  render  its  quality  more 
injurious,  he  thereby  forfeits  his  pretension  to  the 
friendly  character,  under  the  sanction  of  which  he 
might  otherwise  have  justified. 

It  follows,  by  way  of  corollary  to  the  general  pro- 
position above  laid  down,  that  if  the  slander  has  been 
circulated  by  a  number  of  tongues,  the  last  repeat- 
er,  to  protect  himself,  must  mention  the  names  of 
all  his  predecessors  in  the  scandal  with  which  he  is 
acquainted  ;  so  that,  if  A.  invent  the  slander,  which 
is  transmitted  through  B.  and  C.  to  D.  the  last  must 
mention  the  names  of  C.  B.  and  A.,  if  communi- 
cated to  him ;  for  if  he  were  to  mention  the  name 
of  C.  only,  on  an  action  brought  against  C,  he 
might  justify  as  having  given  up  his  author  B.  to 
D.,  by  which  means  the  plaintiff  would  be  barred  of 
his  action  against  C,  and  therefore  might  proceed 
against  D. 

Under  this  division  also  may  be  classed  all  those 
cases  in  which  the  defendant  has  acted  in  a  friendly 
character  to  the  plaintiff,  in  attempting  to  reclaim 
him  from  any  real  or  supposed  vices,  as  by  expos- 
tulation in  a  private  letter,  or  by  writing  to  a  father 
or  other  relation  or  guardian,  to  acquaint  him  with 


2.22 

the  faults  of  those  in  whose  welfare  he  has  an  inter- 
est,  for  the  purpose  of  their  reformation.  Since 
these  are  acts  of  friendship,  intended  for  the  benefit 
of  the  party,  and  not  with  a  malicious  view  to  wound 
his  feelings  or  defame  him,  they  are  not  considered 
by  the  law  as  libellous  ;*  but  this  presumption  is  in 
all  cases  liable  to  be  rebutted  by  evidence,  showing 
that  the  character  of  a  friend  was  assumed  for  the 
purpose  of  defamation. 

*  3  Brovrnl.  151, 152.    2  Burn's  Eccl.  Law.  779.    3  Bac.  Ab.  412. 


2*3 


CHAPTER  XIV. 


Where  the  Defendant  gives  the  Character  of  a 
Servant,  fyc. 

And  next,  the  benefit  of  this  prima  facie  pre- 
sumption extends  to  all  who  appear  to  act  in  the 
discharge  of  any  duty  which  the  convenience  or  exi- 
gencies of  society  call  upon  them  to  perform. 

Where  a  master  gives  a  character  of  a  servant, 
unless  the  contrary  be  expressly  proved,  it  will  be 
presumed  that  the  character  was  given  without 
malice.* 

An  action  was  broughtf  by  the  plaintiff  for  pub- 
lishing the  following  letter  to  one  Collier,  respect- 
ing the  plaintiff's  character  as  a  servant :  "  Two 
days  I  gave  him  money  to  go  into  the  city  and  buy 
books.  When  he  came  home,  I  desired  him  to 
reckon  up  his  account ;  he  did  so.  But  being  one 
day  more  curious  than  I  sometimes  was,  I  looked 
over  his  account,  article  by  article  ;  and  in  one  book 
I  well  knew  the  price  of,  I  found  he  had  charged  me 
one  shilling  more  than  it  cost,  and  that  shilling  he 
kept  in  his  pocket.  The  next  day,  the  very  same 
affair ;  and  both  these  days  my  neighbour  Metcalf 
was  in  my  shop,  and  knows  it  well,  and  said  he 
would  not  keep  such  a  man  a  clay,  or  something  to 

*Burr.  2425.  B.  N.  P.  Edmondson  v.  Stephenson,  8, 
i  Wcatherstone  v.  Hawkins,  I  T.  R.  110. 


224 

that  purpose.  Two  magazines  he  charged  two  shii 
lings  for  binding,  the  people  received  no  more  than 
Is.  Sd. ;  and  this  I  can  prove."  A  verdict  was  found 
for  the  plaintiff  on  one  of  the  counts  of  the  declara- 
tion, containing  the  above  letter,  subject  to  the  opi- 
nion of  the  count  on  the  follow  ing  case  : 

The  plaintiff  was  brother-in-law  to  Mr.  Collier ; 
he  was  in  the  service  of  the  defendant,  and  was  by 
him  turned  away.  Rogers,  to  whom  the  plaintiff 
was  recommended  to  be  taken  as  a  servant,  applied 
to  the  defendant  for  a  character,  which  not  being 
advantageous,  but  to  the  effect  stated  in  the  declara- 
tion, he  (Rogers)  did  not  take  him.  Collier,  upon 
this,  repeatedh  called  upon  the  defendant,  upon 
which  the  letter  stated  in  the  declaration  was  writ- 
ten, with  an  intent  to  prevent  an  action  by  the  plain- 
tiff for  the  words  spoken  by  the  defendant  to  Ro- 
gers. The  writ  was  sued  out  on  the  very  day  the 
letter  was  written. 

The  question  for  the  opinion  of  the  court  is,  whe- 
ther this  action  lies. 

Lord  Mansfield,  C.  J.  "I  have  held  more  than 
once,  that  an  action  will  not  lie  by  a  servant  against 
his  former  master,  for  words  spoken  by  him  in  giving 
a  character  of  the  servant." 

The  general  rules  are  laid  down  as  Mr.  Wood 
<vthe  plaintiff's  counsel)  has  stated;  but  to  every 
libel  there  may  be  a  necessary  or  implied  justifica- 
tion from  the  occasion,  so  that  what,  taken  abstract- 
edly, would  be  a  publication,  may,  from  the  occasion, 
prove  to  be  none,  as  if  it  were  read  in  a  judicial  pro- 
ceeding. Words  may  also  be  justified  on  account 
of  their  subject  matter,  or  other  circumstances.  In 
this  case,  instead  of  the  plaintiff's  showing  it  to  be 


i&ise  and  malicious,  it  appears  to  be  incident  to  tht 
application  by  Rogers  to  the  master  of  the  servant ; 
and  the  letter  was  written  to  the  brother-in-law  of 
the  plaintiff,  for  the  express  purpose  of  preventing 
an  action  being  brought." 

Buller,  J.  "  This  is  an  exception  to  the  general 
rule,  on  account  of  the  occasion  of  writing  the  let- 
ter. Then  it  is  incumbent  on  the  plaintiff  to  prove 
the  falsehood  of  it :  and  in  actions  of  this  kind,  un- 
less he  can  prove  the  words  to  be  malicious  as  well 
as  false,  they  are  not  actionable." 

Judgment  for  the  defendant. 

In  the  case  of  Rogers  v.  Sir  Gervas*e  Clifton ; 
Bart.*  the  following  facts  appeared  in  evidence. 
The  plaintiff  having  been  hired  as  a  servant  by  the 
defendant,  lived  about  six  months  in  his  service,  when 
the  latter  turned  him  away  without  giving  him  a 
month's  warning;  in  consequence  whereof,  the  plain- 
tiff, conceiving  himself  entitled  to  a  month's  wages, 
refused  to  quit  the  service  without  being  paid  that 
sum.  On  this  refusal,  the  defendant  procured  an 
officer  from  the  public  office  to  put  the  plaintiff  out 
of  the  house,  and  employed  his  attorney  to  settle  his 
wages  with  him.  Immediately  after  this,  the  de- 
fendant, who  was  going  into  the  country,  called  on 
Mr.  Holland,  with  whom  the  plaintiff  had  previously 
lived,  to  inform  him  that  the  plaintiff  had  behaved  in 
an  impertinent  and  scandalous  manner,  that  he,  the 
defendant,  had  discharged  him  from  his  service,  when 
the  plaintiff  refused  to  go  without  a  month's  wages  ; 
and  he  therefore  desired  Mr.  Holland  not  to  give 
him  another  character.    While  the  plaintiff'  was  itf 

*  3  B.  £  P.  5S/\ 

&0 


the  country,  he  offered  himself  to  a  Mr.  Hand,  sta- 
ting that  he  had  lived  with  the  defendant.  Upon 
which,  Mr.  Hand  wrote  to  the  defendant  for  a  cha- 
racter, and  received  the  following  answer : 

a  Sir> — in  answer  t*>  your's,  which  came  to  hand 
yesterday,  I  beg  leave  to  acquaint  you,  that  Thomas 
Rogers  did  not  live  with  me  six  months,  as  he  has 
told  you,  and  I  wish  I  had  never  taken  him  into  my 
house,  as  he  is  a  bad-tempered,  lazy,  impertinent  fel- 
low, and  has  given  me  a  great  deal  of  trouble,  as  I 
was  obliged  to  send  an  officer  from  the  Marlborough- 
street  Police  Office  to  put  him  and  his  things  out  of 
my  house,  and  also  to  employ  Mr.  Barnet,  my  attor- 
ney, of  Soho-square,  to  settle  his  wages,  as  I  look 
upon  it  he  will  take  any  advantage  he  can. 

"I  am,  Sir,  your  most  obedient  humble  servant, 

"  Gervase  Clifton." 

Upon  receipt  of  this  letter,  Mr.  Hand  refused  to 
take  the  plaintiff  into  his  service.  It  appeared  that 
Mr.  Holland  never  was  applied  to  for  a  character  of 
the  plaintiff,  after  the  communication  made  to  him 
by  the  defendant ;  and  Mr.  Holland  stated,  that 
without  such  communication  he  should  have  declined 
o-iving  another  character  to  the  plaintiff.  The  plain- 
tiff also  proved,  by  servants  of  the  family,  that  while 
in  the  defendant's  service  he  had  conducted  himself 
well,  and  that  no  complaints  of  the  nature  ascribed 
to  him  in  the  defendant's  letter  had  all  that  time  ex- 
isted. The  jury  found  a  verdict  for  the  plaintiff 
with  20/.  damages,  but  liberty  was  reserved  to  the 
defendant  to  have  a  nonsuit  entered. 


After  the  case  had  been  argued,  Lord  Aivanley , 
C.  J.  said,  "  If  it  were  to  be  understood,  that  when- 
ever a  master  gives  a  bad  character  to  a  servant 
who  has  quitted  his  service,  he  may  be  forced  by  the 
servant,  in  justification  of  such  his  conduct  as  a  mas- 
ter, to  prove  the  particulars  which  he  has  stated  re- 
specting the  servant,  it  would  be  impossible  for  any 
master,  (so  understanding  the  law,  at  least  with  any 
regard  to  his  own  safety)  to  give  any  character  but 
the  most  favourable  to  a  servant,  and  consequentl}'^ 
impossible  for  a  servant,  not  entitled  to  the  most 
favourable  character,  to  obtain  any  new  place.  In  the 
two  cases  of  Edmondson  v.  Stevenson,*  and  Weath- 
erstone  r.  Hawkins, f  the  law  upon  this  subject  ap- 
pears to  me  to  be  laid  down  as  clearly  as  can  be 
wished.     Unquestionably  the  master,  who  has  given 
a  bad  character   of  a  servant  to  persons  inquiring 
after  his  character,  is  not  bound  to  substantiate  by 
proof  what  he  has  said  ;  but  it  is  equally  clear,  that 
the  servant  may,  if  he  can,  prove  the  character  to  be 
false,  and   the  question  between   the   master  and 
servant  will  always,  in  such  case,  be,  whether  what 
the  former  had  spoken  concerning  the  latter,  be  ma- 
licious  and  defamatoty.     In  this  case,  we   are  to 
consider  whether  the   evidence  adduced    by  the 
plaintiff  was  sufficient  to  be  left  to  the  jury."     His 
lordship,  after  stating  the   evidence,  proceeded  to 
observe,  that  the  circumstance  of  the  plaintiff's  re- 
fusal to  quit  his  master's  house  till  his  wages  had 
been  paid,  was  the  only  act  of  impertinence  proved 
against  him  ;  and  that  the  defendant  was  not  called 
upon  by  that  single  act  to  seek  out  Mr.  Holland,  and 
officiously  to  state  what  he  did  ;   that  if  a  servant 

*B.  N.  P.  8.  tiT.  R.  110. 


2£$ 

were  strongly  suspected  of  having  committed  a 
iblony  whilst  in  his  master's  service,  it  would  be  the 
master's  duty  to  warn  others  from  taking  him  into 
their  service ;  but  that,  in  the  principal  case,  the 
offence  imputed  to  the  plaintiff  appeared  to  be 
of  a  trivial  nature.  His  Lordship  concluded  by 
saying,  that  he  should  have  grievously  invaded  the 
province  of  a  jury,  had  he  not  left  it  to  them  to 
say  whether,  considering  all  the  < circumstances  of 
the  case,  the  defendant's  conduct  was  not  malicious, 
and  that  he  did  not  consider  himself  at  liberty  to 
disturb  the  verdict  they  had  given. 

Rooke,  J.  was  of  the  same  opinion,  and  wished  it 
to  be  understood  as  his  opinion,  that  a  master  may, 
at  any  time,  whether  asked  or  not,  speak  of  the  cha- 
racter of  his  servant,  provided  that  he  speak  in  the 
honesty  of  his  heart ;  and  that  an  action  cannot  be 
maintained  against  him  for  so  doing ;  at  the  same 
time,  masters  are  not  warranted  in  speaking  ill  of 
their  servants  from  heat  and  passion. 

Chambre,  J.  referred  to  the  case  of  Lowry  v. 
Aikenhead,*  before  Lord  Mansfield.  In  that  case, 
the  rule  laid  down  by  Lord  Mansfield  was,  "  That 
where  a  person,  intending  to  hire  a  servant,  applies 
to  a  former  master  for  a  character,  the  master  is  not 
bound  to  prove  the  truth  of  the  character  he  gives  ; 
for  what  he  speaks  of  the  servant  he  does  not  speak 
officiously,  but  only  discloses  that  which  rests  in  his 
knowledge  alone ;  but  that  where  a  master  speaks 
ill  of  a  servant,  without  any  previous  application 
having  been  made  to  him,  there  he  must  plead  and 
prove  the  truth  of  the  character  in  justification. 

*  Mich.  8  G.  3. 


229 

And  the  rule  was  discharged. 
It  appears,  therefore,  fully  established,  that  a  ser- 
vant, in  an  action  against  a  former  master,  must  prove 
express  malice. 

It  seems  to  have  been  laid  down  generally  by- 
Lord  Mansfield,  in  the  case  cited  by  Mr.  Justice 
Chambre,  that  where  a  master,  unasked,  gives  a  bad 
character  of  a  servant,  he  must  justify  as  in  other 
cases ;  and  though  Mr.  J.  Rooke  seems  to  have  ex- 
pressed an  opinion  somewhat  different,  there  can  be 
no  doubt  that  the  manifestation  of  any  forward  and 
officious  zeal  on  the  part  of  a  defendant,  who,  unin- 
vited, gives  a  character  to  the  prejudice  of  his  former 
servant,  would  be  a  material  guide  to  a  jury  in  ascer- 
taining his  real  motive. 

Where  a  plaintiff,  knowing  the  character  which 
his  master  will  give,  procures  it  to  be  given  for  the 
sake  of  founding  an  action  upon  it,  he  will  not  be 
allowed  to  recover.* 

So,  in  general,  where  the  publication  is  made  in 
support  or  furtherance  of  the  interests  of  society, 
and  not  wantonly  and  invidiously  for  the  gratification 
of  private  malice,  the  author  is  privileged. 

The  defendant,!  who  was  sergeant  in  a  volunteer 
corps,  of  which  the  plaintiff  also  was  a  member,  re- 
presented to  the  committee,  by  whom  the  general 
business  of  the  corps  was  conducted,  that  the  plaintiff 
was  an  unfit  and  improper  person  to  be  permitted  to 
continue  a  member  of  the  corps. 

The  words  charged  in  the  declaration  were,  that 
the  defendant  had  said  that  the  plaintiff  had  been 
the  executioner  of  the  King  of  France,  and  that  he 

*  Per  Lord  Alvanley,  3  B.  &  P.  592. 
1  Barbaud  v.  Hookham,  5  Esp.  R.  109. 


230 

had  clapped  his  hands,  rejoicing  at  the  event,  adding, 
that  France  would  then  be  one  of  the  first  countries 
in  the  world. 

It  appeared  in  evidence,  that  the  plaintiff  was  a 
Frenchman,  and  that  the  defendant  had  not  made 
use  of  the  words  publicly,  but  had  communicated 
them  to  the  officers  of  the  corps,  who  constituted 
the  committee  for  its  regulation. 

Lord  Ellenborough  said,  that  it  was  not  to  be  al- 
lowed that  such  an  action  could  be  sustained.  It 
was  a  communication  made  upon  a  most  important 
matter  for  their  consideration,  whether  foreigners, 
the  natives  of  a  country  in  open  war  with  us,  were 
to  learn  the  use  of  arms  in  a  country  threatened  to  be 
invaded  by  that  other.  The  action  was  most  ill  ad- 
vised and  improper. 

In  Johnson  v.  Evans,*  the  words  were,  "  She 
is  a  thief,  and  tried  to  rob  me  of  part  of  her  wages." 
It  appeared  upon  the  trial,  that  the  plaintiff  had 
been  servant  to  the  defendant.  Upon  a  dispute 
taking  place,  he  discharged  her,  and  some  differ- 
ence arising  respecting  the  payment  of  her  wages, 
he  charged  her  with  having  attempted  to  cheat  him 
respecting  her  wages,  and  spoke  the  words  as  laid  5 
but  the  plaintiff  failed  in  proving  them  to  have  been 
spoken  at  that  time.  Having,  however,  sent  for  a 
constable,  in  order  to  take  her  into  custody,  he  made 
use  of  the  same  words  to  the  constable  when  he 
came,  to  whom  he  meant  to  have  given  her  in 
charge,  but  which,  in  fact,  he  did  not  do.  The  con- 
stable proved  the  words  as  spoken ;  but  it  further 
appeared   in  the   course  of  his   evidence,  that  the 

*  3  Esp.  R.  38 


231 

words  had  been  spoken  by  the  defendant,  addressed 
to  him  in  his  character  of  constable,  and  in  the 
course  of  charge  and  complaint  which  the  defendant 
made  to  him  against  the  plaintiff. 

Lord  Eldon,  C.  J.  said,  that  the  evidence  given 
of  the  speaking  of  the  words  laid  in  the  declaration 
was  not  such  as  to  induce  him  to  direct  the  jury  to 
find  a  verdict  for  the  plaintiff.  Words  used  in  the 
course  of  a  legal  or  judicial  proceeding,  however 
hard  they  might  bear  upon  the  party  of  whom  they 
were  used,  were  not  such  as  would  support  an  ac- 
tion for  slander.  In  this  case,  they  were  spoken 
by  the  defendant  under  a  belief  of  the  fact,  and 
when  he  was  about  to  proceed  legally  to  punish  it, 
it  would  be  a  matter  of  public  inconvenience,  and 
operate  to  deter  persons  from  preferring  their  com- 
plaints against  offenders,  if  words  spoken  in  the 
course  of  their  giving  charge  of  them,  or  preferring 
their  complaint,  should  be  deemed  actionable. — 
Plaintiff  nonsuited. 

Still  this,  it  seems,  amounts  to  a  prima  facie  de- 
fence only,  liable  to  be  overthrown  by  proof  of  ex- 
press malice  on  the  part  of  the  defendant,  as  by 
showing  that  he  knew  at  the  time  that  the  charge 
was  false.  In  Smith  v.  Hodgkins,*  the  case  was 
this.  The  plaintiff  assaulted  and  beat  the  defendant 
on  the  highway.  The  defendant  meeting  a  con- 
stable, requested  him  to  take  charge  of  the  plain- 
tiff; and  the  constable  refusing  to  arrest  the  plain- 
tiff unless  the  defendant  would  charge  him  with  the 
commission  of  a  felony,  the  defendant  did  so,  and 
judgment  was  given  on  demurrer  for  the  plaintiff; 

*  Cro.  Car.  276. 


the  court  observing,  that  there  was  no  ground  lor 
the  charge  of  felony. 

And  where  property  has  been  actually  stolen,* 
the  defendant  is  not  warranted  in  the  communica- 
tion of  a  suspicion,  which  in  fact  is  unfounded,  ex- 
cept for  the  purpose  of  legal  inquiry.(l) 

Under  this  class  of  communications  may  not 
improperly  be  ranked  those  publications  whose  pro- 
fessed object  is  to  discuss,  for  the  information  of 
the  public,  the  merits  of  the  literary  productions 
of  the  day.  The  authors  of  these,  in  the  detection 
and  exposure  of  vicious  principles  and  bad  taste, 
have  a  most  difficult  and  important  public  duty  to 
discharge,  and  in  return  are  privileged  in  the  most 
unlimited  exercise  of  their  reasoning  powers,  and 
of  their  talents  for  wit  or  satire,  so  long  as  it  is  con- 
fined to  its  legitimate  object,  the  merits  of  the  work 
before  them. 

In  the  case  of  Sir  John  Carr  v.  Hood,f  the  plain- 
tiff stated,  in  his  declaration,  that  he  had  been  the 
author  of  several  productive  publications  called, 
&c.  but  that  the  defendant  intending  to  expose 
him  to  contempt  and  ridicule,  had  published  a  ma- 
licious and  defamatory  libel  concerning  the  said 
Sir  John,  entitled,  "  My  Pocket-Book,  or  Hints 
for  a  righte  merrie  and  conceited  Tour,  to  be 
called,  The  Stranger  in  Ireland  in  1805,  by  a  Knight 
Errant."  The  same  libel  containing  a  malicious  and 
defamatory  print  of  and  concerning  the  said  Sir 

*  Powcl  v.  Plunket,  Cro.  Car.  $2. 
t  1  Camp.  N.  P.  354. 


(1)  But  see  Fowler  el  ux.  v.  Homer,  3  Camp.  Rep.  294. 


»tohn  and  his  books,  called  "  Frontispiece,"  and 
entitled,  "  The  Knight  leaving  Ireland  with  re- 
gret;" and  representing,  in  the  said  print,  a  cer- 
tain false,  scandalous,  malicious,  defamatory,  and 
ridiculous  representation  of  the  said  Sir  John  in 
the  form  of  a  man  of  ludicrous  and  ridiculous  ap- 
pearance, holding  a  pocket  handkerchief  to  his 
face,  and  appearing  to  be  weeping  ;  and  also  a  cer- 
tain false,  malicious,  and  ridiculous  representation 
of  a  man  of  ludicrous  and  ridiculous  appearance, 
following  the  representation  of  Sir  John,  represent- 
ing a  man  loaded  with  and  bending  under  the 
weight  of  three  large  books,  one  of  them  having 
the  word  Baltic  printed  on  the  back  thereof,  and 
a  pocket  handkerchief  appearing  to  be  held  in  one 
of  the  hands  of  the  said  representation  of  a  man, 
and  the  corners  thereof  appearing  to  be  held  or 
tied  together  as  if  containing  something  therein, 
with  the  printed  word  Wardrobe  depending  there- 
from, for  the  purpose  of  rendering  the  said  Sir  John 
ridiculous,  and  thereby  meaning  that  one  copy  of 
the  said  first-mentioned  book  of  the  said  Sir  John, 
and  two  copies  of  the  book  of  the  said  Sir  John 
secondly  above  mentioned,  were  so  heavy  as  to 
cause  a  man  to  bend  under  the  weight  thereof ; 
and  that  his,  the  said  Sir  John's,  wardrobe  was 
very  small,  and  capable  of  being  contained  in  one 
pocket-handkerchief."  The  declaration  concluded 
by  laying,  as  special  damage,  that  Sir  John  had  been 
prevented  from  selling  to  Sir  Richard  Phillips,  for 
(500/.,  the  copyright  of  a  book  of  which  the  said 
Sir  John  was  the  author,  containing  an  account 
of  a  tour  of  the  said  Sir  John  through  part  of  Scot- 
land. 

30 


234 

Lord  Ellenborough,  as  the  trial  was  proceeding, 
intimated  an  opinion,  that  if  the  book  published  by 
the  defendant  only  ridiculed  the  plaintiff  as  an  au- 
thor, the  action  could  not  be  maintained. 

Gar-row,  for  the  plaintiff,  allowed,  that  when 
his  client  came  forward  as  an  author,  he  sub- 
jected himself  to  the  criticism  of  all  who  might 
be  disposed  to  discuss  the  merits  of  his  works, 
but  that  criticism  must  be  fair  and  liberal ;  its 
object  ought  to  be  to  enlighten  the  public,  and 
to  guard  them  against  the  supposed  bad  tendency 
of  a  particular  publication  presented  to  them,  not 
to  wound  the  feelings  and  ruin  the  prospects  of  an 
individual ;  if  ridicule  was  emplojed,  it  should 
have  some  bounds.  While  a  liberty  was  granted 
of  analyzing  literary  productions,  and  pointing  out 
their  defects,  still  he  must  be  considered  as  a  ii- 
beller,  whose  only  object  was  to  hold  up  an  au- 
thor to  the  laughter  and  contempt  of  mankind. 
A  man  with  a  wen  upon  his  neck  perhaps  could 
not  complain  if  a  surgeon,  in  a  scientific  work, 
should  minutely  describe  it,  and  consider  its  nature 
and  the  means  of  dispersing  it ;  but  surely  he  might 
support  an  action  for  damages  against  any  one  who 
should  publish  a  book  to  make  him  ridiculous  on 
account  of  his  infirmity,  with  a  caricature  print 
as  a  frontispiece.  The  object  of  the  book  pub- 
lished by  the  defendant  clearly  was,  by  means  of 
immoderate  ridicule,  to  prevent  the  sale  of  the 
plaintiffs  works,  and  entirely  to  destroy  him  as 
an  author.  In  the  late  case  of  Tabart  v.  Tipper,* 
his  lordship  had  held,  that  a  publication  by  no  means 

-  Vid.  p.  237. 


*S5 

so  offensive  or  prejudicial  to  the  object  of  it,  was 
libellous  and  actionable. 

Lord  Ellenborough.  "  In  that  case,  the  defend 
ant  had  falsely  accused  the  plaintiff  of  publishing 
what  he  had  never  published  ;  here  the  supposed 
libel  has  only  attacked  those  works  of  which  Sir 
John  Carr  is  the  avowed  author ;  and  one  writer, 
in  exposing  the  follies  and  errors  of  another,  may 
make  use  of  ridicule,  however  poignant.  Ridicule  is 
often  the  fittest  weapon  that  can  be  employed  for 
such  a  purpose.  If  the  reputation  or  pecuniary  inter- 
ests of  the  person  ridiculed  suffer,  it  is  damnum  abs- 
que injuria.  Where  is  the  liberty  of  the  press,  if 
an  action  can  be  maintained  on  such  principles? 
Perhaps  the  plaintiffs  Tour  through  Ireland  is 
now  unsaleable,  but  is  he  to  be  indemnified  by 
receiving  a  compensation  in  damages  for  the  per- 
son who  may  have  opened  the  eyes  of  the  public 
to  the  bad  taste  and  inanity  of  his  compositions  ? 
Who  would  have  bought  the  works  of  Sir  Robert 
Filmer,  after  he  had  been  refuted  by  Mr.  Locke? 
But  shall  it  be  said,  that  he  might  have  sustained 
an  action  for  defamation  against  that  great  philo- 
sopher, who  was  labouring  to  enlighten  and  ame- 
liorate mankind  ?  We  really  must  not  cramp  obser- 
vations upon  authors  and  their  works  ;  they  should 
be  liable  to  criticism,  to  exposure,  and  even  to  ri- 
dicule, if  their  compositions  be  ridiculous ;  other- 
wise, the  first  who  writes  a  book  on  any  subject 
will  obtain  a  monopoly  of  sentiment  and  opinion 
respecting  it.  This  would  tend  to  the  perpetuity 
of  error.  Reflection  on  personal  character  is  ano- 
ther thing.  Show  me  an  attack  on  the  moral  cha- 
racter of  the  plaintiff,  or  any  attack  upon  his  cha- 


236 

racter  unconnected  with  his  authorship,  and  I  shall 
be  as  ready  as  any  judge  who  ever  sat  here  to  pro- 
tect him;  but  i  cannot  hear  of  malice  on  account  of 
turning  his  works  into  ridicule." 

The  Counsel  for  the  plaintiff  still  complaining  of 
the  unfairness  of  this  publication,  and  particularly  of 
the  print  affixed  to  it,  the  trial  proceeded. 

The  Attorney-general  having  addressed  the  jury 
on  the  behalf  of  the  defendants, 

Lord  EllenboroLigh  said,  every  man  who  publishes 
a  book  commits  himself  to  the  judgment  of  the  pub- 
lic, and  any  one  may  comment  upon  his  performance. 
If  the  commentator  does  not  step  aside  from  the 
work,  or  introduce  fiction  for  the  purpose  of  con- 
demnation, he  exercises  a  fair  and  legitimate  right. 
In  the  present  case,  had  the  party  writing  the  criti- 
cism followed  the  plaintiff  into  domestic  life  for  the 
purposes  of  slander,  that  would  have  been  libellous ; 
but  no  passage  of  this  sort  has  been  produced,  and 
even  the  caricature  does  not  affect  the  plaintiff,  ex- 
cept as  the  author  of  the  book  which  is  ridiculed. 
The  works  of  this  gentleman  may,  for  aught  I  know, 
be  very  valuable  ;  but,  whatever  their  merits,  others 
have  a  right  to  pass  their  judgment  upon  them, — • 
to  censure  them  if  they  be  censurable,  and  to  turn 
them  into  ridicule  if  they  be  ridiculous.  The  critic 
does  a  great  service  to  the  public,  who  writes  down 
any  vapid  or  useless  publication,  such  as  ought  never 
to  have  appeared.  He  checks  the  dissemination 
of  bad  taste,  and  prevents  people  wasting  both  their 
time  and  money  upon  trash. — I  speak  of  fair  and 
candid  criticism  ;  and  this  every  one  has  a  right  to 
publish,  although  the  author  may  suffer  loss  from  it. 
Such  a  loss  the  law  does  not  consider  as  an  injury, 


237 

because  it  is  a  loss  which  the  party  ought  to  suatain. 
It  is,  in  short,  the  loss  of  fame  and  profits  to  which 
he  was  never  entitled. 

"  Nothing  can  be  conceived  more  threatening  to 
the  liberty  of  the  press  than  the  species  of  action 
before  the  court.  We  ought  to  resist  an  attempt 
against  free  and  liberal  criticism  at  the  threshold." 
The  Chief  Justice  concluded  by  directing  the  jury, 
that  if  the  writer  of  the  publication  complained  of, 
had  not  travelled  out  of  the  work  he  criticised  for 
the  purpose  of  slander,  the  action  would  not  lie; 
but  if  they  could  discover  in  it  any  thing  personally 
slanderous  against  the  plaintiff,  unconnected  with  the 
works  he  had  given  to  the  public,  in  that  case  he 
had  a  good  cause  of  action,  and  they  would  award 
him  damages  accordingly. — Verdict  for  the  defend- 
ant. 

In  the  case  of  Tabart  v.  Tipper,  alluded  to  in  the 
preceding  one,*  the  action  was  brought  for  a  libel  on 
the  plaintiff,  contained  in  a  periodical  work  called 
"  The  Satirist,  or  Monthly  Meteor,"  insinuating  that 
the  plaintiff  (who  was  a  vender  of  childrens'  books) 
had  published  and  vended  books  of  an  improper  and 
immoral  tendency. 

Upon  the  question,  whether  a  witness  ought  to  be 
cross-examined  as  to  the  defendant's  having  publish- 
ed particular  books, 

Lord  Eilenborough  observed,  "The  main  ques- 
tion here  is,  quo  animo  the  defendant  published  the 
article  complained  of;  whether  he  meant  to  put 
down  a  nuisance  to  public  morals,  or  to  prejudice 
the  plaintiff.  To  ascertain  this,  it  is  material  to  know 
the  general  nature  of  the  defendant's  publications  to 

*  1  Camp.  R.  350. 


2:38 

which  the  libel  alludes,  and  I  therefore  think  that  the 
evidence  is  receivable.  The  plaintiff  is  bound  to 
show  that  the  defendant  was  actuated  by  malice,  and 
the  defendant  discharges  himself  by  proving  the  con- 
trary. Liberty  of  criticism  must  be  allowed,  or  we 
should  neither  have  purity  of  taste  nor  of  morals. 
Fair  discussion  is  essentially  necessary  to  the  truth 
of  history  and  the  advancement  of  science.  That 
publication,  therefore,  I  shall  never  consider  as  a 
libel,  which  has  for  its  object  not  to  injure  the  repu- 
tation of  any  individual,  but  to  correct  misrepresen- 
tations of  fact,  to  refute  sophistical  reasoning,  to  ex- 
pose a  vicious  taste  in  literature,  or  to  censure  what 
is  hostile  to  morality." 

But  in  the  same  case  it  appeared  that  the  libel 
falsely  imputed  to  the  plaintiff  the  publication  of 
some  silly  verses  of  an  improper  tendency,  which 
were  specified  in  the  libel,  and  set  forth  in  the  in- 
formation ;  and  it  was  allowed  on  the  part  of  the  de- 
fendant, that  the  plaintiff  had  not  published  them, 
but  it  was  contended  that  they  were  a  fair  specimen 
of  his  publications. 

Lord  Eilenborough,  however,  informed  the  jury, 
that  it  was  certainly  actionable,  gravely  to  impute  to 
a  bookseller  having  published  a  poem  of  this  sort, 
to  which  he  was  a  stranger;  as  the  evident  tendency 
of  the  unfounded  imputation  was  to  hurt  him  in  his 
business. 

In  the  case  of  Heriot  v.  Stuart,*  it  was  held  that 
no  action  was  maintainable  tor  asserting  in  a  news- 
paper that  another  public  paper  was  the  most  vulgar, 
ignorant,  and  scurrilous  journal  ever  published  in 
Great  Britain.    But  subsequent  words,  alleging  that 

*  1  Esp.  Rep.  437. 


239 


it  was  the  lowest  paper  in  circulation,  were  deemed 
actionable,  since  they  affected  the  sale  and  the  pro- 
fits to  be  made  by  advertising. 

In  the  case  of  Dibdin  v.  Bostock,*  which  was  an 
action  for  publishing  a  paragraph  in  a  newspaper, 
stating  that  the  songs  at  a  place  of  public  entertain- 
ment were  not  ot  the  plaintiff's  composition,  as  they 
professed  to  be.  and  representing     e  |       '    nances 
as  despicable,  and  as  gaining  no  appl      se  except 
from  persons  hired  for  the  purpose.     Lord  Kenyon 
observed,  "The  editor  of  a  public  newspaper  may 
fairly  and  candidly  comment  on  any  place  or  species 
of  public  entertainment,  but  it  must  be  done  'airly, 
and  without  malice  or  view  to  injure  or  prejudice 
the  proprietor  in  the  eyes  of  the  public  ;  if  so  done, 
however       ere  the  censure,  i he  justice  of  it  screens 
the  editor  from  legal  animadversion ;  but  if  it  can  be 
proved  that  the  comment  is  unjust,  is  malevolent,  or 
exceeding  the  bounds  of  fair  opinion,  it  is  a  libel, 
and  actionable." 


*  1  Esp.  R.  29. 


240 


CHAPTER  XV. 


Where  the  Defendant's  Act  is  unexplained. 

Where  the  mere  naked  words,  unwarranted  by 
the  situation  of  the  publisher,  or  the  occasion  of  the 
publication,  constitute  the  only  circumstance  from 
which  the  motive  of  the  party  using  them  can  be  in- 
ferred,* the  law  necessarily  collects  an  evil  intention 
from  the  mischievous  tendency  of  the  act,  and  in  the 
absence  of  a  justifiable  cause,  supposes  the  defend- 
ant to  have  had  that  end  in  view  to  which  the  means 
used  were  adapted,  namely,  the  injury  to  the  plain- 
tiff's character  or  property. 

The  presumption  is,  however,  nothing  more  than 
a  rule  of  evidence,!  that  malice  shall  be  inferred 
from  the  unexplained  act  of  the  defendant ;  an  in- 
ference which  is,  nevertheless,  liable  to  be  rebut- 
ted by  evidence  showing  that  no  malice  really 
existed. 

The  plaintiff  brought  an  action  against  one,  for 
saying  of  him  that  he  heard  he  was  hanged  for  steal- 
ing of  a  horse  ;  and,  upon  the  evidence,  it  appeared 
that  the  words  were  spoken  in  grief  and  sorrow  for 
the  news.  Twysden,  J.  cited  this  as  a  case  which 
he  heard  tried  before  Hobart,  J.  who  nonsuited  the 

*  Sec  Lord  Mansfield's  opinion,  in  K.  v.  Woodfall,  and  K.  v.  Almon.  5 
Hurr. 

The  King  v.  Lord  Abingdon,  1  Esp.  Rep.  226. 


241 

plaintiff,  because  the  words  were  not  spoken  mali- 
ciously. And  all  the  court  agreed  that  this  was  done 
according  to  law.* 

In  the  King  v.  Lord  Abingdon, f  Lord  Kenyon 
observed,  "  In  order  to  constitute  a  libel,  the  mind 
must  be  in  fault,  and  show  a  malicious  intention  to 
defame  ;  for,  if  published  inadvertently,  it  would  not 
be  a  libel ;  but  where  a  libellous  publication  is  un- 
explained by  any  evidence,  the  jury  should  judge 
from  the  overt  act ;  and  where  the  publication  con- 
tains a  charge  slanderous  in  its  nature*  should  from 
thence  infer  that  the  publication  was  malicious. 

And  a  wanton  disregard  of  the  feelings  and  in- 
terests of  others,  is,  in  point  of  law  as  well  as  mo- 
rality, equivalent  to  express  malice ;  so  that  it  is  no 
defence  for  the  publisher  of  a  libel  to  say  that  he 
was  but  in  jest ;  for,  as  has  been  well  observed  by  a 
learned  writer,  the  mischief  to  the  reputation  of  the 
party \  grieved  is  in  no  ways  lessened  by  the  merri- 
ment of  him  who  makes  so  light  of  it ;  and  it  might, 
with  equal  regard  to  gravity  and  good  sense,  be 
contended,  that  a  man  who  cuts  the  throat  of  another 
is  not  guilty  of  murder,  because  he  takes  s  saiir 
guinary  delight  in  the  operation ;  as,  that  a  man's 
intentions  are  not  wrongful  and  malicious  when  he 
destroys  another's  reputation,  because  the  actjj  of 
destruction  gives  him  pleasure. 

Where  a  libel  upon  the  character  of  an  individual 
not  intended  to  be  published,  is  nevertheless,  through 
negligence  or  accident,  made  public,  to  the  detriment 

*  Lev.  82.     Mich.  14  C.  2.    B.  R.     1  Vin.  Abr.  540. 
f  1  Esp.  Rep.  228. 

I  Haw.  PI.  C.  c.  73. 

II  9  Co.  59.     Moor,  627.    Haw.  P.  C  c.  73.  s.  14. 

31 


242 

of  the  party,  it  seems  that  the  act  of  the  person  who 
composed  the  libel  would  be  in  law  a  wrong,  though 
the  contents  should  ultimately  become  public  through 
inadvertence,  since  he  had  no  right,  in  the  first  in- 
stance, to  trust  the  interests  of  another  to  chance, 
and  render  his  character  dependent  upon  accident ; 
and  therefore,  by  so  doing,  encumbered  himself  with 
at  least  the  civil  consequences  which  might  after- 
ward ensue  from  an  involuntary  publication. 

The  legal  principle  upon  which  this  responsibility 
is  founded  is  clearly  delivered  in  Mr.  Buller's  Law 
of  Nisi  Prius.*  "  Every  man  ought  to  take  reason- 
able care  that  he  does  not  injure  his  neighbour ; 
therefore,  whenever  a  man  receives  any  hurt  through 
the  default  of  another,  though  the  same  were  not 
wilful,  yet,  if  it  be  occasioned  by  negligence  or  folly, 
the  law  gives  him  an  action  to  recover  damages  for 
the  injury  so  sustained."(l) 

This  principle  comprehends  not  only  the  instance 
just  mentioned,  where  a  writing  not  intended  to  be 
published,  is  divulged  for  want  of  proper  care,  but 
every  case  in  which  a  noxious  publication  proceeds 
from  mere  levity  or  thoughtless  jocularity ;  for 
though  the  actual  intention  to  produce  mischief  might 
not  at  the  moment  actually  influence  the  mind  of  the 
defendant,  the  act  is  attended  with  that  criminal  in- 
attention to  consequences  which  constitutes  malice 
in  its  legal  sense,  and  in  justice  renders  the  party 
responsible  for  the  detriment  so  occasioned. 

*  p.  N.  P.  25. 

(1)  Brwn  v.  Croome,  2  Starkie's  Rep.  301: 


243 


CHAPTER  XVI. 


Process. 


Next  are  to  be  considered  the  means  appointed 
by  law  for  obtaining  such  damages  where  the  party 
is  entitled  ;  and  the  means  of  defence  where  a  party 
sues  who  is  not  so  entitled. 

The  division  of  these  proceedings  is  naturally  sug- 
gested by  the  order  in  which  they  occur  in  point  of 
time,  and  consist  of,  the  process,  pleadings,  trial, 
judgment,  and  writs  of  error;  to  which  may  be  added, 
the  writ  of  prohibition. 

Of  the  Process. — The  action  to  recover  damages 
for  slander,  whether  oral  or  written,  is  a  special 
action  on  the  case  ;  in  which,  since  the  damages  are 
uncertain,  the  party  cannot  be  held  to  bail  without  a 
special  order  of  the  court,  or  of  a  judge,  on  a  full 
affidavit  of  the  circumstances,*  and  no  instance  ap- 
pears in  the  books  in  which  such  an  order,  in  a  com- 
mon case,  has  been  granted.  Even  in  an  action  of 
scandalum  magnatum,  the  court  has  denied  an  appli- 
cation for  good  bail;  in  the  Marquis  of  Dorchester's 
casef  the  defendant  agreed  to  put  in  bail  to  the 
amount  of  50/. 

11  1  Tidd.  P.  150,  ed.  4.  i  2  Mod.  215. 


244 

In  the  Earl  of  Macclesfield's  case,*  the  plaintiff 
desired  that  the  defendant  might  put  in  special 
bail ;  but  the  court  would  not  grant  it,  and  said,  it 
was  a  discretionary  thing,  and  not  to  be  demanded 
ofright.(l) 

And  it  seems  that  the  court  will,  in  no  case,  allow 
special  b  il,  unless  affidavit  be  made  of  the  words 
spoken. f(i) 

*  3  Mod.  41.  Ibid. 


(1)  Clason  v.  Gould,  2  Caines's  Rep.  47.   Norton  v.  Barnum,  20  Johns.  Rcjh 
337.   Van  Vetchen  v.  Hopkins,  2  Johns.  Rep.  293. 

(2)  And  the  words  spoken  must  be   alleged  to  be  false.    Peareson  v.  Picket. 
1  M'Cord's  Rep.  473. 


245 


CHAPTER  XVII, 


Of  the  Venue. 

It  is  next  to  be  considered  what  there  is  peculiar 
to  the  pleadings  in  an  action  for  slander :  Observa- 
tions upon  the  declaration  relate  to  the  venue,  the 
parties,  the  averments,  and  the  joinder  of  different 
counts. 

First,  to  the  Venue. — In  general,  the  venue  in  an 
action  of  this  nature  may  be  changed  upon  the  usual 
affidavit,  where  that  affidavit  can  be  made  with  pro- 
priety. But  where*  a  libel,  written  or  printed  in 
one  county,  is  circulated  in  others,  the  court  will  not 
change  the  venue  to  the  first ;  for,  since  every  pub- 
lication is  afresh  offence,  the  defendant  cannot  swear 
that  the  cause  of  action  was  conrined  to  any  one 
county.f(l) 

But  where  a  libel  is  written  in  one  place,  and 
sent  to  another  in  the  same  county,  the  court  will 
change  the  venue,  t 

So,  where  the  libel  is  written  in  one  county  and 
published  in  Germany,  the  defendant  may  change 

*  Hoskins  v.  Ridgway,  H.  23  G.  3.  K.  B.  Pinkney  v.  Collins,  1  T.  B.  571. 
1  Wils.  178.     1  T.  R.  647. 
t  Clissold  v.  Clissold,  1  T.  R.  647.  1  Wils.  178. 
1  Freeman  v.  Norris,  3  T.  R.  306. 

(I)  Clinton  v,  Croswell,  2  Caines's  Rep.  245. 


246 

the  venue,  upon  an  affidavit  that  the  cause  of  action 
arose  in  that  county,  and  not  elsewhere  in  this  king- 
dom.* 

And  in  the  case  of  Freeman  v.  Norris,  j  the  dis- 
tinction was  recognised  between  libels  dispersed 
throughout  the  kingdom  and  those  which  are  pub- 
lished in  one  county  only. 

So  that,  where  the  libel  is  printed  in  one  county 
and  published  in  a  second,  the  venue,  if  laid  in  the 
second,  cannot  be  changed ;  for  the  publication  in 
the  latter  county,  is  the  act  of  the  defendant,  and 
he  cannot  make  the  usual  affidavit. 

But  the  court  will  otherwise  change  the  venue 
where  special  ground  is  laid. 

As  if  the  defendant  cannot  have  a  fair  trial  in  the 
original    county.^: 

But  in  an  action  for  scandalum  niagnatum,  it 
seems  the  venue  cannot  be  changed  upon  the  usual 
affidavit ;  and  the  reason  assigned  is,  that  the  scan- 
dal raised  of  a  peer  of  the  realm  reflects  upon  him 
throughout  the  kingdom. § 

In  the  case  of  Lord  Shaftesbury  above  alluded  to, 
the  venue  was  changed  on  the  ground  that  the  de- 
fendant could  not  have  a  fair  trial  in  London  where 
the  venue  was  laid. 

In  the  Marquis  of  Dorchester's  case,||  on  amotion 
to  change  the  venue,  which  had  been  laid  in  London, 
Pemberton,  Serg.  showed  cause  against  the  mo- 
tion. 

1st.  Because  the  king  was  a  party  to  the  suit,  for 
it  is, 

;  3  T.  R.  652.  Metcalf  v.  Markham.  t  3  T.  R.  306. 

1  Lord  Shaftesbury's  case,  1  Vent.  364. 
5  Gil.  C.  P.  90.    '  II  2  Mod.  216. 


247 

2dly.  Because  the  plaintiff  was  a  lord  of  parlia- 
ment, where  his  services  would  be  required.  North, 
C.  J.  was  of  opinion  that  the  venue  could  not  be 
changed,  since  the  proceeding  was  in  the  nature  of 
an  information.  But  Atkins,  J.  inclined  to  think 
that  the  venue  might  be  changed ;  but  the  court 
not  agreeing,  the  defendant  consented  that  the  cause 
should  be  tried  in  London,  and  the  venue  was  not 
changed. 

But  it  seems  that  generally,  unless  special  ground 
be  laid  for  changing  it,  the  plaintiff  in  scandalum 
magnatum  may  retain  his  venue.* 

Formerly,  in  actions  for  slander  as  well  as  in 
others,  where  a  local  justification  was  pleaded,  the 
courts  observed  great  nicety  in  requiring  the  venue 
to  be  awarded,  not  only  from  the  county,  but  the 
very  place  in  which  the  justification,  as  stated  in  the 
plea,  arose.  The  reasons  for  this  were,  indeed, 
frequently  stronger  in  these  actions  than  in  other 
instances,  since  where  the  truth  of  a  criminal  charge 
is  pleaded  in  justification,  the  issue  partakes  of  the 
nature  of  a  criminal  process  ;  and  it  is  said,  that  upon 
its  being  found  against  the  plaintiff,  he  is  liable  to  be 
tried  by  a  petty  jury  without  further  inquest. 

In  the  case  of  Ford  v.  Brooke, f  which  was  an  ac- 
tion for  calling  the  plaintiff  a  perjured  person  at  D. 
in  Essex ;  the  defendant  justified,  averring  that  the 
defendant  had  perjured  himself  at  Westminster  in 
the  county  of  Middlesex  ;  the  plaintiff  replied,  de 
injuria,  &c.  and  the  court  awarded  the  venire  to  be 
directed  to  the  sheriff  of  Middlesex. 

*  Duke  of  Norfolk  v.  Alderton,  2  Salk.  €68.     1  Lev.  56.  307.  1  Vent.  3fit, 
f  Cro.  Eliz.  261 


248 

So,  in  an  action  for  calling  the  plaintiff  a  thief,  at 
Dale,  in  Essex,  the  defendant  pleaded  that  the 
plaintiff  had  committed  a  robbery  at  Sale,  in  the 
same  county  ;  and  issue  being  joined  upon  that  fact, 
the  court  awarded  the  venire  from  Sale.*  And  a 
misdirection  of  the  venire  was  a  good  ground  for 
arresting  or  setting  aside  the  judgment,  though  the 
court  would  in  such  case,  award  a  ne"w  venire.  But 
the  law  upon  this  point  is  altered  by  the  statutes 
16  &  17  C.  2.  c.  8.  and  4  Ann,  c.  16.  s.  6. ;  the  for- 
mer of  which  enacts,  that  after  verdict,  no  judgment 
shall  be  arrested  or  reversed,  for  that  there  is  no  right 
venue,  so  as  the  cause  of  action  were  tried  by  a  jury 
of  the  proper  county  or  place  where  the  action  was 
laid  :  and  the  latter  directs  that  the  venire  shall  be 
awarded  out  of  the  body  of  the  county  where  such 
issue  is  triable.! 

In  Craft  v.  Boite,t  the  word  swere,  '*  Look, 
there  is  a  thievish  young  rogue,  he  hath  stolen  200/. 
worth  of  plate  out  of  Wadham  College,"  (meaning 
Wadham  College,  in  the  university  of  Oxford.) 
The  plaintiff  brought  his  action  in  London ;  the  de- 
fendant justified  the  words,  because  he  said  that  the 
plaintiff'  at  Oxford,  in  the  county  of  Oxford,  stole 
certain  plate  out  of  Wadham  College  ;  the  plaintiff 
pleaded  de  injuria,  fyc. ;  and  the  issue  was  tried  in 
London,  where  the  plaintiff  had  a  verdict  with  50/. 
damages. 

Saunders,  for  the  plaintiff,  moved  in  arrest  of  judg- 
ment, on  the  ground  of  the  mistrial,  but  the  court 

*  Clerk  v.  James,  Cro.  Eliz.  870.     See  also  Bowyer's  case,  Cro.  Eliz. 
t  See  Serg.  Williams's  note,  2  Saund-  5. 
*  1  Saund.  241. 


249 


{ against  the  opinion  of  Twisden)  conceived  that 
the  fault  was  cured  by  the  statute  which  had  lately 
passed.*  And  this,  which  appears  to  be  the  first 
decision  under  the  act,  has  since  been  acquiesced 


in. 

*  16  &  17  C.  2. 


m 


25(i> 


CHAPTER  XVIII. 


Of  the  Parties, 

Parties. — First,  as  to  the  number  of  plaintiffs. 
In  this  species  of  action,  as  well  as  in  other  cases 
of  tort,  two  or  more  may  join  where  their  joint  in- 
terest has  been  affected  by  the  act  of  the  defend- 
ant.* So  that,  where  a  libel  reflects  upon  two 
partners  in  their  trade,  they  may  join  in  the  action.f 
But  unless  a  joint  interest  be  affected,  several  ac- 
tions should  be  brought,  though  the  same  words  be 
spoken  or  libel  published  concerning  two.(l)  As, 
where  A.  says  to  B.  and  C,  "  You  have  murdered 
D.,"  B.  and  C.  must  bring  several,  and  not  joint  ac- 
tions.:}: So  it  seems,  that  two  joint-tenants  or  copar- 
ceners may  join  in  action  of  slander  of  their  title  to 
the  estate :  for,  as  it  must  be  shown  in  the  declara- 
tion, and  proved,  that  the  plaintiffs  received  some 
particular  damage  by  reason  of  the  slander,  the  da- 
mage, even  as  well  as  their  interest  in  the  estate,  is 
joint.  § 

So,  for  the  words  A.  or  B.  murdered  D.,  either 

*  Weller  v.  Baker,  2  Wils.  423.     2  Williams's  Saund.  116.  a.  n.  2. 
|  Maitland  v.  Goldney,  2  East,  425.     3  Bos.  and  Pull.  150.  Cook  r.  Batch 
elor,  Shepp.  Ac.  53. 
J  Cro.  Car.  512.     28  H.  8.  foi.  19.    Dyer,  Shepp.  Ac.  53.  Deacon's  case  . 
§  2  Will.  Saund.  117.  a. 

(1)  Se*  Patten  et  «7.  v.  Gttrtiey  et  al.  17  Mass.  I?ep.  186, 


2ol 

A.  or  B.  may  bring  a  separate  action,*  but  they 
cannot  maintain  a  joint  one.f  Where]:  joint  ac- 
tionable words  are  spoken  of  a  husband  and  wife, 
the  tort  is  several,  and  the  husband  alone  may 
bring  the  action  ;  but  the  wife  may,  in  such  case, 
be  joined,  provided  the  injury  be  laid  as  done  to 
herself. 

The  case  of  words  spoken  of  the  wife  admits  of 
three  varieties  ; 

1st.  When  the  words  are  not  actionable,  but  at- 
tended with  special  damage. 

2d.  Actionable  without  special  damage. 

3d.  Actionable  with  special  damage. 

In  the  first  case,  the  damage  resulting  to  the  hus- 
band is  the  sole  ground  of  action,  and  the  wife  must 
not  be  joined.  As,  where  the  action  is  brought  for 
calling  the  wife  a  bawd,  per  quod  the  husband  lost 
liis  customers. §  And  to  join  the  wife  in  such  case 
would  be  bad  on  demurrer,  in  arrest  of  judgment, 
or  in  error. 

But  secondly,  where  the  words  are  actionable, 
and  no  special  damage  laid,  the  wife  must  be  joined, || 
and  the  declaration  conclude  ad  damnum  ipsorum, 
for  there  the  action  survives  ;  and  she  must  be  join- 
ed ^[  in  an  action  for  any  slander  published  of  her  be- 
fore her  marriage. 

But  thirdly,  where  the  words  spoken  of  the  wife 
are  actionable,  and  special  damage  has  accrued  in 
consequence  to  the  husband,  great  perplexity  has 

*  10  Mod.  198.  t  1  Roll.  Ab.  81. 

|  Smith  v.  Croker,  Cro.  Car.  512; 
§  1  Lev.  140.     B.  N.  P.  7. 
||  Grove  v.  Hart,  Tr.  35  G.  2.     B,  N.  P.  7. 

1T  3  T.  R.  627.  631.     Com.  Dig.  Bar.  &  Fern.      1  Sid.  387.  Ld.  Ray.  120$. 
Soil,  Ab.  317. 


252 

arisen  on  the  question  whether  the  wife  should  be 
joined  or  omitted.  The  difficulty  in  this  case  pro- 
ceeds from  the  circumstance  of  two  distinct  causes 
of  action  being  involved  in  one  and  the  same  trans- 
action,— the  actionable  words  spoken  of  the  wife, 
and  the  special  damage  resulting  to  the  husband. 
For  the  former,  the  husband  is  not  entitled  to  da- 
mages without  making  his  wife  a  part)',  and  the 
cause  of  action  survh  es  to  her.  In  the  latter  case, 
the  loss  is  several,  and  peculiar  to  the  husband,  and 
ought  not,  therefore,  to  be  stated  as  the  loss  of  both. 
Accordingly,  where  the  husband  has  brought  the. 
action  alone,  it  has  been  contended  that  he  ought 
to  have  joined  his  wife  in  respect  of  the  actionable 
words  spoken  of  her,  that  at  all  events  the  action 
would  survive  to  her,  and  therefore  that  the  defend- 
ant would  twice  make  compensation  for  the  same 
injury.  And  in  similar  cases,  when  the  wife  has 
been  joined,  it  has  been  argued  that  the  joint  action 
was  improper,  since  the  special  damage  accrued. 

From  a  review  of  the  decisions  upon  this  point, 
it  appears,  that  the  wife  is  not  barred  by  the  hus- 
band's action,  though  the  special  damage  resuit  from 
actionable  words  spoken  of  the  wife,  which  removes 
the  objection  to  a  separate  action,  in  which  he  alone 
is  entitled  to  recover  damages.  In  Guy  v.  Livesey,* 
the  husband  alone  recovered  in  an  action  of  tres- 
pass for  a  personal  injury  to  himself,  and  also  for 
beating  his  wife,  by  means  of  which  he  lost  her  so- 
ciety for  three  days.  And  on  motion  in  arrest  of 
judgment,  th  court  held,  t;<at  the  action  was  well 
brought ;  for  the  action  was  not  brought  in  respect 

*Cro.  Jac.  601. 


253 

vf  the  harm  done  to  the  feme,  but  for  the  particular 
loss  of  the  husband,  for  that  he  lost  the  company  of 
his  wife,  which  was  only  a  damage  and  loss  to  him- 
self, for  which  he  should  have  the  action,  as  a  mas- 
ter should  have  for  the  loss  of  his  servant's  service. 

In  Young  v  Pridd,*  the  plaintiff  brought  tres- 
pass, for  that  the  defendant  assaulted,  ill  treated, 
and  carried  away  his  wife,  and  detained  her  for  half 
a  year,  by  means  of  which  he  lost  the  comfort  and 
society  which  he  should  otherwise  have  had  with  his 
said  wife.  After  verdict  and  judgment  for  the  plain- 
tiff, error  was  brought  in  the  Exchequer  Chamber, 
and  assigned  that  the  husband  had  brought  the  ac- 
tion for  the  battery  of  the  wife,  which  he  could  not 
do  without  his  wife,  and  had  recovered  damages  for 
the  battery?  and  therefore  that  the  judgment,  was 
erroneous.  But  all  the  Justices  and  Barons  held, 
that  the  husband  in  that  action  did  not  recover  da- 
mages for  the  battery  of  his  wife,  but  for  the  loss 
which  he  had  in  wanting  her  company.  That  the 
per  quod  consortium  amisit  and  abduction  of  her 
were  one  entire  conjoined  cause  of  action,  for  which 
the  damages  were  given.  That  for  the  battery,  true 
it  was  that  the  wife  ought  to  have  joined  to  recover 
damages,  and  that  the  verdict  and  judgment  did  not 
bar  the  wife  from  an  action,  after  the  death  of  her 
husband,  for  the  battery,  or  that  she  might  join  with 
her  husband  in  another  action.  And  judgment  was 
affirmed. 

In  the  case  of  Smith  v.  Hixon,f  it  was  held  that 
the   husband  alone  might  maintain  an  action  for  the 

*  Cro.  Car.  89- 

t  Str.  977.    See  also  Hyde  v.  Scvssor,  8  Mod.  26.     Cro.  J.  538.  Fort.  377, 
Cro.  J.  664. 


254 

malicious  prosecution  of  the  wife,  by  means  of 
which  he  was  put  to  expense.  After  verdict  for 
the  plaintiff,  upon  motion  in  arrest  of  judgment, 
grounded  on  the  omission  of  the  wife,  the  court 
said,  that  though  the  remedy  for  the  scandal  might 
survive  to  the  wife,  it  was  no  objection  to  the 
husband's  action,  and  that  he  might  undoubtedly 
proceed  for  the  battery  of  the  wife,  per  quod  con- 
sortium amisit,  and  yet  the  action  for  the  beating 
would  survive  to  the  wife. 

From  these  cases  it  appears,  that  the  husband 
may  separately  maintain  an  action  for  the  damage 
resulting  to  himself,  from  a  personal  injury  offered 
to  the  wife,  for  which  personal  injury  they  might 
have  maintained  a  joint  action,  and  that  the  right 
of  action  would  survive  to  the  wife  for  the  inde- 
pendent injury  done  to  herself.  The  case  of  ac- 
tionable words  spoken  of  the  wife,  producing  spe- 
cial damage  to  the  husband,  seems,  in  all  respects, 
perfectly  analogous  to  those  cited ;  and  on  their 
authority  it  may  be  concluded,  that  a  husband,  for 
such  words,  or  rather  for  the  damage  resulting  from 
them,  may  sue  without  his  wife.  And  it  seems 
highly  reasonable  that  the  husband,  in  respect  of 
the  special  damage,  should  be  entitled  to  a  separate 
action.  In  case  the  words  had  not  been  intrin- 
sically actionable,  the  husband  must  have  sued 
alone  ;  and  it  can  scarcely  be  contended  that  the 
injurious  quality  of  the  words  can  compel  him  to 
alter  the  nature  of  the  proceeding,  to  recover  for  the 
separate  tort  to  himself,  the  only  alteration  in  the 
case  consisting  in  the  additional  mischief  to  the 
wife.     Since  the  injuries  are  completely  distinct, 


2bo 

there  seems  no  reason  why  the  remedies  should 
not  be  equally  independent.  A  contrary  suppo- 
sition would  involve  this  absurdity,  by  the  increas- 
ed virulence  of  the  words,  the  plaintiff  would  be 
placed  in  a  worse  situation  as  to  his  remedy,  since, 
in  case  of  actionable  words,  his  title  to  damages 
would  become  dependent  upon  the  life  of  his  wife, 
and  would  be  extinguished  by  her  dying  before 
judgment  recovered. 

There  are,  notwithstanding,  several  cases  in 
which  it  has  been  held,  that  where  there  is  a  pro- 
per  cause  of  action  in  the  wife,  though  special  cir- 
cumstances are  added  which  are  actionable  in  the 
husband  only,  the  declaration  is  good  by  husband 
and  wife,  and  the  additional  circumstances  may  be 
considered  as  a  mere  matter  of  aggravation. 

In  Cookson  and  his  wife  v.  Castline,*  the  plain- 
tiff brought  trespass  for  entering  upon  their  land, 
making  hay  of  their  grass,  and  carrying  it  away. 
It  was  moved  in  arrest  of  judgment,  that  the  action 
doth  not  lie  by  baron  and  feme  for  the  hay  taken* 
for  it  is  a  chattel  severed  from  the  inheritance,  and 
vested  in  the  baron,  for  which  the  feme  shall  not 
join  with  him  in  the  action.  But  the  clear  opinion 
of  the  court  was,  that  they  may  well  join ;  for  as 
they  may  join  in  trespass  de  clausofracto,  and  cut- 
ting their  grass,  so  they  may  join  for  the  hay  com- 
ing of  it ;  and  so  it  was  adjudged.  But  Wray  said, 
if  it  were  for  taking  twenty  loads  of  hay,  without 
saying,  coming  of  the  same,  it  would  be  otherwise  j 
for  it  might  be  intended  of  hay  lying  upon  the  land 
before,  for  which  they  cannot  join. 

*  Cro.  Eliz.  OG. 


256 

But  in  the  case  of  Arundell  v.  Short  and  his  wife,* 
which  occurred  soon  after,  upon  a  judgment  given 
in  trespass,  by  baron  and  feme,  of  their  close  bro- 
ken and  corn  carried  away,  it  was  assigned  for  error 
that  the  feme  ought  not  to  join,  for  she  can  have  no 
property  in  the  corn,  and  48  Ed.  3.  18,  and  9 
Ed.  4.  52,  were  cited  as  in  point.  For  the  plain- 
tiffs, Godfrey  and  Coke,  argued,  that  it  is  in  the  elec- 
tion of  the  baron  to  join  his  wife  in  personal  ac- 
tions, and  it  may  be  intended  that  they  were  joint 
tenants  of  the  corn  before  coverture,  or  that  the 
feme  had  it  as  executrix,  and  if  the  writ,  by  any 
intendment,  may  be  good,  it  shall  not  abate. 
Gawdy,  J.  said,  "the  books  agree,  that  for  personal 
things  they  cannot  join,  but  for  personal  things  in 
action,  it  is  in  the  election  of  the  husband  to  join 
his  wife  or  not."  And  the  judgment  was  reversed. 

In  Russell  v.  Corne.f  The  husband  and  wife 
brought  trespass  and  false  imprisonment  for  the 
imprisonment  of  the  wife,  by  means  of  which  the 
domestic  affairs  of  the  husband  remained  undone, 
to  the  damage  of  both.  After  verdict  for  the  plain- 
tiff, it  was  moved  in  arrest  of  judgment,  that  the  bu- 
siness of  the  husband  remaining  undone,  could  not 
be  to  the  damage  of  the  wife,  and  that  for  such 
damage,  the  husband  ought  to  have  brought  the 
action  alone.  But  it  was  answered,  that  the  action 
being  well  brought  and  conceived  for  the  imprison- 
ment, what  came  under  the  per  quod  could  only  be 
taken  in  aggravation,  as  if  words  in  themselves  action- 
able be  spoken  of  a  wife,  and  the  husband  and  wife 

*  Cro.  Eliz.  133. 
.  t  Salk.  119.    Holt.R.  699.  6  Mod.  127. 


251 

bring  the  action,  andconclude^er  quod,  &c.  the  Iiujs- 
bandlost  his  customers,  it  would  be  well,  forthe  words 
being  in  themselves  actionable,  the  per  quod  should 
be  taken  in  aggravation,  all  which  the  court  allowed. 
But  Lee,  C.  J.  is  reported  to  have  said,  "  In  a 
manuscript  note  which  I  have  seen  of  this  case  in 
Salkeld,*  Holt,  C.  J.  says,  '  I  will  not  intend  that 
the  judge  suffered!  the  husband's  business  remain- 
ing undone  to  be  given  in  evidence.' " 

In  Todd  v.  Redford,|  the  husband  and  wife  brought 
a  joint  action  against  the  defendant,  for  the  assault 
and  battery  of  the  wife.  The  declaration  set  forth, 
that  the  defendant  assaulted  Eleanor  the  wife,  and 
driving  a  coach  over  her,  bruised  her,  &c.  by  means 
of  which  the  husband  laid  out  money  for  the  cure, 
&c.  After  verdict  for  the  plaintiffs,  it  was  moved 
in  arrest  of  judgment,  that  the  husband  and  wife 
should  not  have  joined,  because  the  damage  is  laid 
to  be  for  the  money  laid  out  in  the  cure  of  the  wife,, 
as  well  as  for  the  battery,  and  that  entire  damages 
having  been  given,  it  was  bad  for  the  whole.  Oa 
the  other  side,  it  was  contended,  that  the  tort  was 
only  to  the  wife,  and  the  rest  but  consequential 
damage.  That  it  was  so  held  in  Russell  v.  Corne  ; 
but,  per  Powell,  J.,  where  husband  and  wife  join  in 
an  action  of  assault  and  battery  for  beating  both,  it 
is  wrong,  but  it  may  be  helped  by  a  verdict  sepa- 
rating the  damages.  Here  the  gist  of  the  action  is 
only  the  beating  of  the  wife,  and  the  raiione  hide  is 
but  in  aggravation  of  damages.  The  husband  and 
wife  cannot  join  in  assault  and  battery,  per  quod 
consortium  amisit ;  for  the  per  quod,  in  such  a  cas£. 

*  lin  ■'■  Str.  10.94.  11  Mod.  2CA 

33 


258 

is  the  gist  of  the  action  ;  but  in  the  case  at  bar,  had 
the  ratione  inde  been  left  out,  the  surgeon's  bill 
might  have  been  given  in  evidence,  in  aggravation 
of  damages.  And  judgment  was  given  for  the 
plaintiff. 

In  these  and  other  cases  where  it  has  been  held 
that  the  wife  may  join,  though  special  damage  be 
laid  to  the  husband,*  it  has  been  said  that  action  was 
well  brought,  because  the  special  damage  laid  under 
the  per  quod,  was  merely  in  aggravation. 

But  it  has  frequently  been  decided,  that  those 
circumstances  cannot  be  laid  in  aggravation  for 
which  a  different  appropriate  action  is  maintainable. 
Thus,  in  trespass  for  entering  the  plaintiffs  house, 
the  beating  his  wife,  child,  or  servant,  may  be  stated 
in  aggravation  ;  but  the  plaintiff  cannot  recover 
damages  for  losing  the  service  of  his  child  or  ser- 
vant, because  he  is  entitled  to  another  action  for  that 
injury.f 

So  in  trespass,  for  entering  the  plaintiff's  house 
and  assaulting  him,t  and  for  assaulting  and  menacing 
his  servants  and  children,  it  was  moved  in  arrest  of 
judgment,  that  the  master  could  not  maintain  tres- 
pass for  beating  and  assaulting  his  servants  or  chil- 
dren, without  special  damage.  But  it  was  resolved, 
that  the  action  was  for  the  breaking  and  entry,  and 
that  the  further  description  was  only  to  show  the 
court  how  enormous  that  trespass  was.  That  the 
plaintiff  could  not  recover  damages  for  losing  the 
service  of  his  children  or  servants,  nor  could  that 

*  1  Salk.  119.  11  Mod.  261.  Yel.  89.  1  Roll.  Rep.  360.  Holt,  R.  699. 
<*.  Mod.  127. 

)  Peakc's  Ca.  Ni.  Pri.  46.  B.  N.  P.  89.  1  Sid.  225.  Mod.  147.  2  Salk.  642. 
3  Bun.  1078. 

+  Ncwnwn  v.  Smith,  Salk.  6.12. 


Say 

be  given  in  evidence,  because  the  plaintiff  might 
have  a  proper  action  for  that  purpose. 

In  Dix  v.  Brooks,*  the  plaintiff  declared  that  the 
defendant  broke  and  entered  his  house,  and  assaulted 
his  wife.  After  verdict,  it  was  moved  in  arrest  of 
judgment,  that  the  wife  should  have  joined  ;  that  by 
her  not  joining,  the  defendant  pays  damages  to  the 
husband,  and  yet  that  the  action  for  the  assault  would 
survive  to  the  wife,  and  so  the  defendant  would  be 
doubly  charged.  And  besides  that,  there  was  no 
laying  per  quod  consortium  amisiU  to  entitle  the 
baron  only  to  sue,  and  to  exclude  the  wife.  But  the 
Court  said,  "  the  plaintiff  may  join  that  in  his  de- 
claration to  aggravate  damages,  for  which  he  could 
not  singly  recover,  and  the  party  injured  have  his 
separate  action,  as  in  the  common  case  of  beating  a 
servant,  per  quod  servitium  atnisit,  both  master  and 
servant  may  recover.  And  in  the  case  of  Newman 
v.  Smith,  it  was  held,  that  the  plaintiff  might  allege 
the  beating  of  his  daughter  in  aggravation  of  da- 
mages." 

By  these  cases,  those  of  Russell  and  Corne,  and 
Todd  and  Redford,  appear,  to  be  much  shaken,  since 
the  rule  of  policy  which  restrains  a  plaintiff  from 
recovering  in  one  action  for  an  injury  which  ought 
to  form  the  subject  matter  of  a  different  and  more 
appropriate  action,  applies  with  much  more  force  to 
cases  like  the  principal  one,  where  different  rights 
are  affected,  and  another  person  ought  to  join. 

Upon  the  whole,  it  seems  perfectly  clear,  that 
where  the  words  spoken  of  the  wife  are  actionable, 
and  also  produce  special  damage  to  the  husband,  it 

+  sir.  r.n. 


264) 

is  proper  that  he  should  sue  alone  for  the  special 
damage,  and  that  the  action  for  the  slander  would 
survive  to  the  wife.  On  the  other  hand,  since  the 
special  damage  is  the  subject  of  a  specific  appro- 
priate action  by  the  husband  alone,  it  seems  impro- 
per to  state  it  in  an  action  brought  by  both ;  the 
defect,  however,  would  be  aided  by  a  verdict,  ex- 
cluding the  special  prejudice,  and  confining  the 
damages  to  the  detriment*  sustained  by  the  wife.(l) 

Next,  as  to  the  Joinder  of  different  Defendants. 

Where  the  wrongful  act  is  the  joint  act  of  two 
or  more,  the  plaintiff  may  proceed  against  them  in 
one  and  the  same  action ;  as,  where  the  slander  is 
contained  in  affidavits,  made  by  two,  but  so  con- 
nected as  to  form  one  slanderous  charge. t (2) 

But  where  two  persons  speak  the  same  words, 
the  plaintiff  must  bring  separate  actions,  for  the 
acts  are  several  in  their  nature,  and  the  tort  of  one 
is  not  the  tort  of  the  other.  (3) 

The  defendants  said  to  the  plaintiff,;  "  Thou  hast 
the  plate  of  J.  S.,  and  we  charge  thee  with  that 
felony."  After  verdict  for  the  plaintiff,  in  an  ac- 
tion against  both,  judgment  was  arrested.  And  the 
case  of  an  action  for  mere  slander  differs  in  this 
respect  from  an  action  for  charging  a  plaintiff  with 
felony,  and  procuring  him  to  be  indicted  ;  for  in  the 

*  2  Mod.  CC.     2  Lev.  101.     1  Lev.  3.     Com.  Dig.  Pleader,  c.  87. 
.+  2  East.  426.  +  Cro.  Jac.  647. 


(1)  Ebersol  v.  King,  el  vx,  3  Binn.  555. 

(2)  Harris  y:  Huntington,  tlal,  2  Tyl.  Rep.  147.  Thomas  v.  Rumseij,  6  Johns. 
Rep.  27. 

<3)  6  Johns.  Rep..  32.    17  Mass.  Rep.  186. 


26X 

latter,  the  act  of  the  defendants  is  joint,  and  the 
plaintiff  may  proceed  against  them  in  the  same  ac- 
tion.* 

Though  the  husband  and  wife  speak  the  same 
words,  the  plaintiff  must  bring  different  actions,  and 
the  court  will  not  permit  them  to  be  consolidated, 
for  it  would  be  error  to  join  the  wife  for  words 
spoken  by  the  husband  only,  and  the  declarationf 
would  be  ill  either  upon  demurrer,  or  in  arrest  of 
judgment.(l) 

But  where,  in  an  action  against  husband  and  wife 
for  speaking  of  the  plaintiff  certain  scandalous  words, 
the  jury  found  the  husband  guilty,  and  the  wife  not 
guilty,  the  plaintiff  had  judgment ;  for  though  the 
action  ought  not  to  have  been  brought  against  both, 
and  the  declaration  would  have  been  held  ill  on  de- 
murrer, yet  the  verdict  cures  the  error,  t 

*  B.  N.  P.  5. 

t  Swithen  and  his  Wife  v.  Vincent  and  his  Wife,  2  Wils.  227.     Subly  t. 
Mott,  B.  N.  P.  5. 
J  1  Roll.  Abr.  781.  (o)  pi.  1.     Sty.  349.     Com.  Dig.  Pleader,  c.  87. 

'  1)  Penters  v.  England,  et  We,  1  M'Cord's  Rep.  14. 


CHAPTER  XIX. 


Of  the  Averments. 

The  declaration  in  this,  as  well  as  in  every  other 
action,  consists  of  a  clear  and  technical  statement  of 
the  facts  necessary  to  support  the  complainant's 
suit ;  so  that  they  may  be  understood  by  the  party 
who  is  to  answer  them,  by  the  jury  who  are  to 
ascertain  the  truth  of  the  allegations,  and  by  the 
court  who  are  to  give  judgment  upon  them.* 

It  has  been  in  all  times  the  fashion  to  preface  the 
legal  enunciation  of  the  plaintiffs  case,  with  a  pre- 
liminary panegyric  upon  his  character ;  this  is  su- 
perfluous, since  it  does  not  affect  the  gist  and  es- 
sence of  the  action.  A  man  of  bad  character  is 
not  to  be  represented  as  worse  than  he  really  is, 
and  therefore  is  entitled  to  a  compensation,  to  be 
measured  by  the  excess  of  the  scandal  beyond  what 
is  really  due  to  him.  In  one  instance,!  indeed,  it 
appears  that  the  plaintiff's  announcing  himself  to  be 
of  good  fame,  tempted  the  defendant  to  plead  that 
at  the  time  of  publishing  the  words  the  plaintiff 
was  not  of  good  fame  ;  but  the  plea  was  holden  to 

*  Cowp.  682.     Com.  Dig.  Pleader,  C.  P.  17.    Co.  Litt.  3S3.    2  B.  &  P.  267. 
i  Strachey's  case,  Sty.  118. 


262 

be  bad,  since  it  answered  matter  of  inducement 
which  did  not  require  any  answer.(l) 

In  a  late  case,  the  plaintiff,  in  an  action  for  a  libel, 
imputing  to  him  seditious  principles,  prefaced  his 
declaration  with  a  boast  of  the  uniform  loyalty  of 
his  conduct ;  it  appeared  that  he  had  been  some 
time  in  confinement  under  the  sentence  of  the  court 
for  publishing  a  seditious  libel ;  and  the  Lord  Cniet 
Justice  animadverted  on  the  impropriety  and  ab- 
surdity of  such  a  preamble.  . 

It  is  necessary  that  the  declaration  should  plainly 
and  clearly  exhibit  the  two  circumstances  whose 
concurrence  is,  as  frequently  observed,  essential  to 
the  maintenance  of  the  action. 

1  The  wrongful  act  of  the  defendant. 

2  The  damage  sustained  by  the  plaintiff;  where 
it  is  not  presumed  by  law  from  the  act  itself. 

The  wrongful  act  of  the  defendant  consists  in  his 
having  published  that  which  is  illegal  concerning  the 
plaintiff,  with  a  malicious  intention. 

First,  as  to  the  act  of  publication. 

It  appears  that  a  publication  in  effect  must  be 
stated,  though  no  particular  form  of  words  is  re- 
quired.  In  the  case  of  Baldwin  v.  Elphinstone  *  it 
was  assigned  for  error,  that  in  the  second  count  the 
defendant  was  charged  with  ^togt^^}^ 
and  having  caused  it  to  be  printed  in  the  St.  James  s 
Chronicle?  but  was  not  charged  with  having  pub- 
lished it.  After  argument  in  the  Exchequer  Cham- 
ber,  the  Justices  and  Barons  were  all  of  opinion 


*  2  Bl.  R.  1037. 


(1)  Coleman  v.  Soulhwick,  9  Johns.  Rep.  45- 


2M 

that  the  judgment  ought  to  be  affirmed.  That  there 
are  various  modes  of  publication,  and  no  technical 
words  are  necessary  to  describe  it ;  that  it  is  suffi- 
cient if  there  be  stated  in  the  declaration  such  mat- 
ter as  amounts  to  a  publication  without  using  the 
formal  term  published,  and  the  Jury  are  upon  the 
evidence  to  decide  whether  a  publication  be  suffi- 
ciently proved  or  no.  That,  printing  a  libel  may 
be  an  innocent  act,  but  unless  qualified  by  circum- 
stances, shall  prima  facie  be  understood  to  be  a 
publishing  :  it  must  be  delivered  to  the  compositor 
and  other  subordinate  workmen.  That  printing  in 
a  newspaper  admits  no  doubt  uponthe  face  of  it. 
The  court  further  observed,  "  It  is  stated  that  he 
caused  to  be  printed.  This  confirms  the  fact  of 
publication,  because  it  calls  in  a  third  person  as 
agent,  to  whom  the  libel  must  have  been  communi- 
cated. In  short,  the  count  does  not  state  generally, 
as  it  might  have  done,  that  the  libel  was  published, 
but  it  expresses  the  particular  mode  of  publication, 
viz.  in  a  newspaper.  It  thereby  puts  the  publication 
in  issue,  and  the  jury  have  found  it  so." 

It  must  be  observed,  that  this  was  after  verdict, 
which  was  relied  upon  by  the  Court,  and  probably 
the  declaration  would  have  been  considered  as  de- 
fective upon  special  demurrer,  for  not  stating  a  pub- 
lication in  more  explicit  terms. 

In  this  case,  too,  great  stress  was  laid  upon  the 
circumstance  that  the  defendant  caused  the  libel  to 
be  printed  in  a  neivspaper,  had  the  allegation  been 
simply,  that  the  defendant  printed  and  caused  to  be 
printed,  the  libel  in  question,  it  would  have  been 
difficult  to  have  construed  it  into  an  averment  that 


265 

he  published,  since  a  man  may  print,  and  therefore 
cause  to  be  printed,  without  the  intervention  of 
others. 

The  term  published  is  the  proper  and  technical 
word  to  be  used  in  the  case  of  libel,  without  refer- 
ence to  the  precise  degree  in  which  the  defendant 
has  been  instrumental  to  such  publication  ;  since, 
if  he  has  intentionally  lent  his  assistance  to  its 
existence  for  the  purpose  of  being  published,  his 
instrumentality  is  evidence  to  show  a  publication  by 
him.* 

In  a  declaration  for  words  spoken,  it  is  sufficient 
to  aver  that  the  defendant  spoke  the  words  in  the 
presencef  of  divers  persons,  without  alleging  that 
those  present  either  heard  or  understood  them,  and 
it  will  be  intended  that  they  did  hear  and  understand 
the  words  till  the  contrary  appear. 

But  it  would  be  insufficient  to  aver  that  the  words 
were  spoken,  without  stating  them  to  have  been 
spoken  in  the  presence  of  some  one,:}:  or  without 
some  averment  which  necessarily  implied  a  publica- 
tion to  a  third  person  as  that  the  defendant  palam  et 
publice§  promulgavit.  de  querent e. 

It  has  been  doubted  whether  it  be  sufficient  to 
lay  the  words  to  have  been  spoken  under  a  cumqite 
etiam,  by  way  of  recital  ;||  but  in  the  case  of  Mors 
v.  Thacker,^[  it  was  decided,  that  such  an  allegation 
in  an  action  on  the  case  is  good,  though  it  would  be 
otherwise  in  trespass. 

But  if  the  words  be  spoken  in  a  foreign  language, 
an  averment  is  necessary  that  the  hearers  under- 

+  Lamb's  case,  9  Rep. 

t  Cro.  E.  480.    Noy^7.    Golds.  119.    Cro.  J.  39.    Cro.  Car.  199. 

■-  Sty.  70,  ^ro.  Eliz-  361.         II  2  Mod.  41.  TJ-Lwr.  f63. 


stood  them  ;*  and  even  when  Welsh  words  were 
averred  to  have  been  spoken  in  Monmouthshire, 
which  once  was  part  of  Wales,  judgment  was  ar- 
rested after  verdict  for  the  plaintiff,  because  it  was 
not  averred  that  they  were  spoken  before  Welshmen, 
or  those  who  understood  the  Welsh  tongue.f 

In  the  King  v.  Brereton,^  the  indictment  stated 
that  the  defendant  "  Scripsit  fecit  et  publicavit,  sen 
scribi  fecit  et  publicari  causavit."  And  judgment 
was  arrested  on  account  of  the  uncertainty  of  the 
disjunctive  charge  ;  and  in  a  civil  proceeding,  such 
an  averment  would  probably  be  considered  defect- 
ive, if  pointed  out  on  special  demurrer. 

Next  it  must  appear  that  the  publication  contained 
illegal  matter. 

The  words  or  signs  are  either  intrinsically  action- 
able, or  derive  their  illegality  from  collateral  circum- 
stances ;  it  is  therefore  necessary  to  inquire,  in  the 
first  place,  how  the  mere  words  themselves  are  to 
be  stated  and  connected  with  the  plaintiff;  and  se- 
condly, where  they  are  not  in  themselves  actionable, 
how  they  are  to  be  connected  with  the  collateral 
facts  from  which  their  actionable  quality  is  derived. 

First,  as  to  the  statements  of  the  mere  words  or 
signs  ;  it  has  long  been  settled  in  both  civil  and  cri- 
minal cases,  that  the  declaration  or  indictment  must 
profess  to  set  out  the  very  words  published,  and  that 
it  is  not  sufficient  to  describe  them  by  their  sense, 
substance,  and  effect.  (1) 

*  Cro.  E.  490.     Cro.  E.  865.         f  Cro.  EJiz.  865.        }  8  Mod.  328. 


(1)  Wright  v.  Clements,  3  Barn,  and  aid.  503.  Wood  v.  Brown,  6  Taunt. 
169.  S.  C  more  fully  reported,  1  Marsh,  522.  ,  Se#  Wahh  r.  The  State.  2 
M'Cord's  Rep-  248.    These  were  all  cases  of  libel-  ^^ 


261 

it  seems*  formerly  to  have  been  held  sufficient 
to  set  out  the  words,  not  in  English  as  they  were 
delivered,  but  in  the  Latin  language  ;  the  permit- 
ting which  clearly  recognised  the  propriety  of  a  sub- 
stantial, in  contradistinction  to  an  actual  and  precise 
statement  of  the  very  expressions  used,  since  in 
many  instances  it  would  be  impossible  to  render 
the  expressions  used  in  Latin  ones  perfectly  sy- 
nonymous. 

And  it  appearsf  to  have  been  the  opinion  of  Holt, 
C.  J.  in  Dr.  Drake's  case,  that  the  libel  might  have 
been  set  forth  in  the  information  in  Latin,  in  which 
case  a  variance,  which  did  not  change  the  sense, 
would  not  vitiate  it. 

No  argument  can,  however,  be  drawn  from  this 
source,  in  support  of  a  substantial,  in  opposition 
to  a  precise  statement,  since  the  doctrine  has  been 
virtually  overruled  ;  for  if  it  were  sufficient  to  set 
out  a  Latin  translation  whilst  the  proceedings  were 
drawn  in  Latin,  it  would,  on  the  same  principle, 
after  the  passing  of  the  statutes  |  which  direct  the 
English  to  be  substituted  for  the  Latin  language  in 
all  legal  proceedings,  have  been  sufficient  to  set  out 
a  libel  published  in  French  or  Italian  merely  by 
an  English  translation.  But  in  the  case  of  Zenobio 
v.  Axtell,§  judgment  was  arrested,  because  a  libel 
published  in  French  had  not  been  set  out  in  the  ori- 
ginal language,  but  merely  described  by  way  of 
translation.      And  Lord  Kenyon,  C.  J.  upon  that 

*  See  Hugh  Pync'scase,  Cro.  Car.  117,  which  was  submitted  to  all  the  judges 
for  their  opinion,  when  many  indictments  for  uttering  traitorous  and  seditious 
'voids  were  cited,  in  many  of  which  nothing  more  than  the  Latin  translation 
was  set  out; 

*H<»lt,  E.  351  t  2  G.  2.  c-  2-  and  6  G.  2.  c-  14.  §  6  T.  R.  16*. 


268 

occasion  observed,  that  from  the  uniform  current  of 
proceedings,  it  appeared  that  the  original  words 
should  be  set  forth  with  an  English  translation* 
showing  their  application  to  the  plaintiff. 

In  the  case  of  the  Queen  v.  Dr.  Drake,*  Holt, 
C.  J.  is  reported  to  have  said,  "A libel  maybe  de- 
scribed either  by  the  sense  or  by  the  ivords  ;  but  by 
the  Chief  Justice's  application  of  this  doctrine,  it  ap- 
pears that  he  did  not  mean  that  a  mere  description 
of  the  words  by  their  effect  would  be  sufficient ;  for 
he  observes,  "  A  libel  may  be  described  either  by 
the  sense  or  by  the  words  of  it,  and  therefore  an 
information,  charging  that  the  defendant  made  a 
writing  containing  such  words,  is  good,  and  in  that 
case  a  nice  exactness  is  not  required,  because  it  is 
only  a  description  of  the  sense  and  substance  of 
the  libel ;  and  if  the  Jury  find  some  omissions,  it 
will  be  sufficient  if  some  words  be  proved"  The 
latter  expression,  "if  some  words  be  proved," 
clearly  evinces  that  the  very  words,  and  not  merely 
their  effect,  were  to  be  set  out ;  and  that  his  Lord- 
ship meant  to  say,  not  that  it  is  unnecessary  to  state 
the  words  themselves,  but  that  they  may  be  stated 
two  ways,  either  by  their  tenor,  in  which  case  the 
pleader  undertakes  to  set  out  the  words  with  the 
greatest  precision,  and  the  libel  given  in  evidence 
must  agree  exactly  with  the  one  set  out  in  the  in- 
formation, or  by  stating  that  the  defendant  made  a 
writing  containing  inter  alia  the  words  set  out,  in 
which  case  it  would  be  necessary  to  set  out  those 
only  which  are  material,  and  a  variance  would  not 
be  fatal,  unless  the  sense  were  altered. 

3  Salk.  224-   Hoi*,  F.  347.  349,  P56    12?.     -  I   Wo     [> 


200 

In  the  case  of  Newton  v.  Stubbs,*  the  action  way 
brought  for  words  spoken,  which  were  set  out  in  the 
declaration  ad  tenor  cm  et  effectum  sequentem  ;  and 
after  verdict  for  the  plaintiff,  judgment  was  arrested, 
because  it  was  not  expressly  alleged  that  the  de- 
fendant spoke  the  very  words. 

In  the  case  of  the  King  v.  Bearf  the  indictment 
was  for  composing,  writing,  making,  and  collecting 
several  libels  in  uno  quorum  conlinetur  inter  alia  juxta 
tenorum  et  ad  ejfectum  sequentem,  and  the  words 
were  then  set  out. 

And  it  was  agreed  that  ad  effectum  would  of  it- 
self have  been  bad,  since  the  court  must  judge  of 
the  ivords  themselves,  and  not  of  the  construction 
the  prosecutor  puts  upon  them,  but  that  the  words 
juxta  tenorem  sequentem  import  the  very  words 
themselves.f  And  it  was  held,  that  the  words  "  ad 
effectum"  were  loose  and  useless  words  ;  but  that  the 
words  juxta  tenorum  being  of  a  more  certain  and 
strict  signification,  the  force  of  the  latter  was  not 
hurt  by  the  former,  according  to  the  maxim  **  utile 
'per  inutile  non  vitialur" 

In  the  same  case,  J  that  of  Ford  v.  Bennett  was 
referred  to,  where  in  a  special  action  upon  the  case 
against  Bennett  and  others,  the  plaintiff  declared  that 
the  defendants,  at  Saltashe,  procured  a  false  and 
scandalous  libel  against  the  plaintiff  to  be  written 
under  the  form  of  a  petition,  and  the  libel  was  set 
forth  after  the  words  continetur  ad  tenorem  et  ad 
effectum  sequentem.  Two  were  found  guilty,  upon 
which  judgment  was  entered  for  the  plaintiff,  and 
afterward  upon   error   brought  in  the  Exchequer. 

'  3  Mo.l.  7i  |  2Salk.417.  I  Lord  Ray.  it;* 


&?0 

the  judgment  was  affirmed,  the  exception  taken  to 
the  words  ad  effectum  having  been  overruled  with- 
out consideration.  And  Holt,  C.  J.  said,  that  he 
then  thought  the  judgment  to  be  given  with  too 
great  precipitation  ;  but  he  afterward,  upon  great 
consideration,  had  esteemed  it  to  be  very  good  law. 
And  the  King  v.  Fuller,*  and  the  King  v.  Young, f 
were  cited  as  authorities  in  point ;  and  the  whole 
court  were  of  opinion,  that  notwithstanding  the  ex- 
ception, the  indictment  was  good ;  but  that  if  it  had 
been  only  ad  effectum  sequentem,  it  had  been  ill,  be- 
cause it  had  not  imported  that  the  words  were  the 
specific  ivords  which  were  in  the  libel. 

In  the  above  case  of  the  Queen  v.  Drake,  \  a  dis- 
tinction was  taken  between  an  action  for  libel  and 
one  for  words,  and  that  in  the  latter  case  it  would 
be  sufficient  to  find  the  substance ;  but  in  case  of 
words  spoken,  as  well  as  written,  it  has  been  held 
necessary  to  set  out  the  words  themselves,  and 
that  it  is  insufficient  to  aver  that  the  defendant  spoke 
these  words  vel  his  similia.§(l) 

And  next,  the  statement  of  the  ivords  written  or 
spoken  must  correspond  with  the  publication,  to  be 
proved. (2) 

It  has  been  said,||  that  the  strictness  formerly 
observed  as  to  proving  the  words  precisely  as  laid, 

*  Mich.  4  W.  &  M.                t  Ibid.  X  Holt,  R.  34S.  350. 

$  Cro.  J.  159.    1  Vin.  Ab.  533.  pi.  1.  Br.  Ac  sur  le  cas.  pi.  112.    4  Ed.  6. 
4  T.  R.  217. 

"    II  B.  N.  P.  5- cites  2  Roll.  Ab.  IS-  a.  Avarillo  v.  Rogers,  T-  T.  1773. 


(1)  But  a  declaration  in  slander,  laying  the  charge  in  the  alternative,  viz.  that 
lie  defendant  spoke  certain  words,  or  words  of  the  same  imperii  i*  good  after 
verdict.     Bell  v.  Bugg,  4  Munf.  Rep-  2fi0. 

(1)  Sep.  pott,  not*  <>1 


11 1 


V 


has  been  abandoned,  and  that  it  is   sufficient  to 
prove  the  substance  of  them;  but,  at  the  present 
day,  it  seems  requisite  to  prove  some  of  the  words, 
though  not  all,  precisely  as  they  are  laid,  both  m     ^ 
case  of  oral  and  written  slander.(l) 

If  the  slander*  be  contained  in  words  of  interro- 
gation, it  must  be  so  laid,  and  must  not  be  averred 
to  have  been  spoken  affirmatively. 

In  the  case  of  the  Lady  Ratcliffe  v.  Shubly,t 
the  words  laid  in  the  declaration  were,  "  She  is  as 
very  a  thiefe  as  any  that  robbeth  by  the  highway 
side  "  The  jury  found  that  the  defendant  spoke 
these  words,  "  She  is  a  worse  thiefe  than  any  that 
robbeth  by  the  highway  side."  And  Wray,  O.J. 
was  of  opinion,  that  "  as  very  a  thief,  and  a 
worse  thief,"  are  all  one  ;  but  Gawdy  and  Fenner 
Justices,  ruled  that  the  words  did  not  agree  with 
the  declaration.  e 

So,  an  indictment  for  speaking  these  words  of  a 
magistrate,*  "  He  is  a  broken  down  justice,  is 
not  satisfied  by  evidence  of  the  words,  «  You  are 
a  broken  down  justice."  Lord  Kenyon,  indeed, 
in  this  case,  held  at  nisi  prius,  that  it  was  suffi- 
cient to  prove  the  substance  of  the  ivords  stated,  and 
the  defendant  was  found  guilty;  but  the  point  was 


*  2  East,  434.     8  T.  R.  150.     4  T.  R.  217. 

t  Cro.  Eliz.  224.     But  see  Dyer,  75. 

I  R.  t.  Berry,  4  T.  R.  217-     Blissct  v.  Johnson,  Cr^E^^contra. 

(i)  The  distinction  taken  in  Q««»V~  Drake,  is  borne  out  by  the  cases  de- 
cided in  the  Unfed  States,  and  by  the  later  English  eases.     Kennedy  v  Lwry, 

Binn.  393,  Miller  filler,  8  Johns.  Rep-  58,  Gn*  v.  Heyser   2  M'Cord  - 
Rep  305,  and  Kye  v.  Otis,  8  Mass.  Rep.  122,  are  direet  authori.es  that  in  a  - 
ins  for  '.oris,  U  is  sufficient  to  state  and  prove  the  substance  of  be  words    I-        y 
Led  to  have  been  spoken.     Hancock  el  ux  v.  Winter,  2  Marsh.  503  7  Taunt.        0 
205.  and  Walters  v.  Mace.  2  Barn.  &  Aid.  756,  are  to  the  same  point- 


h 


; 


272 

reserved,  in  order  that  a  verdict  of  acquittal  mighi 
be  entered,  in  case  the  court  should  be  of  a  dif- 
ferent opinion.  On  motion  to  that  effect,  Bul- 
ler,  J.  said,  that  there  was  a  case  in  Strange, 
in  support  of  his  lordship's  opinion,  but  that  it 
had  since  been  overruled  in  Lord  Mansfield's  time, 
and  that  he  himself  had  known  a  variety  of  nonsuits 
on  the  same  objection ;  and  judgment  was  given  for 
the  defendant.  (1) 

So,  where  A.*  says  of  B.  and  C.  "  You  have 
committed  such  an  offence,"  though  B.  and  C.  may 
have  separate  actions,  each  must  state  the  words 
to  have  been  spoken  of  both. 

So,  where  the  words  are  spokenf  ironically,  they 
must  be  stated  as  spoken,  with  an  averment  that 
they  were  spoken  ironically. 

Where  the  declaration  stated  these  words  of  the 
plaintiff,  "  He  stole  a  sheep  of  his,"  (innuendo  of 
the  defendant.)  It  was  moved  in  arrest  of  judg- 
ment, that  his  must  refer  to  the  last  antecedent, 
and  so  that  .the  words  were  repugnant,  for  a  man 
cannot  steal  his  own  sheep  $  but  the  objection  was 
overruled. 

Upon  the  authority,  however,  of  more  recent 
cases,  it  seems  the  variance  between  the  words  his, 

*  Cro.  Car.  512.  t  11  Mod.  86.  J  8  Mod.  30. 

(1)  The  sense  and  manner  of  speaking  the  words  must  be  proved,  therefore 
words  charged  to  be  spoken  in  the  third  person,  will  not  be  supported  by  proof 
of  words  spoken  in  the. second  person.  8  Johns.  Hep-  59.  M'Connell  v.  M'Coy, 
7  Serg.  &  Rawle,  223,  overruling  Tracey  v.  Harkins,  1  Binn.  395,  n.  Wolf  v. 
Jlodifer,  1  Ilarr.  fit  Johns.  Rep.  409.  So  an  averment,  that  slanderous  words 
were  spoken  concerning  the  (three)  plaintiffs  in  their  joint  trade,  is  not  sup- 
ported by  evidence  of  words,  addressed  by  the  defendant  personally,  to  one  onlv 
v  «r  the  partners-     Solomons  et  d-  v.JWedcx,  1  St  urine's  "Rep-  191, 


4 


273 

as  used  in  the  declaration,  and  mine,  as  proved  in 
evidence,  would  be  a  ground  of  nonsuit. 

Where  the  words  laid  in  the  declaration,*  was 
spoken  of  a  surveyor,  were,  "  Harrison  is  a  scoun- 
drel; if  I  would  have  found  him  an  oven  for  nothing, 
and  given  him  after  the  rate  of  20/.  per  cent, 
upon  the  amount  of  the  charges  for  work  and 
materials,  he  would  have-  passed  my  account." 
The  first  witness  called  for  the  plaintiff  proved 
these  words :  "  Harrison  is  a  scoundrel,  and  if  I 
had  allowed  20/.  per  cent,  he  would  have  passed 
my  account."  The  second  witness  proved  the 
words,  "  Harrison  is  a  scoundrel,  and  if  I  had 
deducted  20/.  per  cent,  he  would  have  passed  my 
account." 

Lord  Ellenborough,  C.J.  said,  that  words  to 
be  actionable,  should  be  unequivocally  so,  and 
be  proved  as  laid;  but  that,  as  the  words  were 
proved,  they  did  not  support  the  declaration.  The 
words  of  the  declaration  were,  "If  he  would  give 
me  20/.  per  cent."  that  might  mean  something  to 
himself,  by  which  he  would  be  himself  benefited  to 
the  prejudice  of  his  employer,  but  the  words  proved 
were,  "  If  he  would  allow,"  or  "  if  he  would  deduct 
20/.  per  cent."  These  words  might  import  an  allow- 
ance or  deduction  from  the  plaintiffs  bill  for  the 
benefit  of  his  employer,  and  were  of  a  different 
meaning  andimport."(l) 

Where  the  words  are  spoken,  or  libel  published, 
in  a  foreign  language,  they  must  be  set  out  in  the 

*  4  Esp.  R.  218. 


(1)  See  Hancock  et  ux  v.  Winter,  7  Taunt.  205.     2  Marsh-  503.     Shepherd 
Pliss  ct  ux.     2  Startle's  Rep.  510- 

35 


474 

original  language,  otherwise  the  declaration  will 
be  bad  in  arrest  of  judgment.*  But  it  seems  that 
ah  English  translation  of  them  ought  likewise  to 
be  set  forth,  showing  their  application  to  the  plain- 
tiff. 

But  in  an  anonymous  case  in  Hobart,|  the 
plaintiff  declared  against  the  defendant  for  calling 
him  Idoner  in  the  Welsh  tongue,  and  had  judg- 
ment, though  he  did  not  aver  that  the  word  amount- 
ed to  a  charge  of  perjury ;  and  the  case  was  cited, 
in  which  the  plaintiff  had  judgment  for  the  words, 
"  Thou  art  a  healer  of  felons,''  without  any  averment 
how  the  words  were  taken  ;  because  the  court  were 
informed,  and  took  notice  that  in  some  counties  the 
term  healer  was  understood  to  mean  a  smotherer  or 
coverer  of  felons. 

But  at  all  events,  the  more  correct  mode  is  to  aver 
the  meaning  of  the  words  in  English,  since,  when 
the  original  publication  is  made  either  in  a  foreign 
language  or  in  a  dialect  of  this  kingdom,  their  mean- 
ing ought  not  to  rest  upon  mere  evidence,  but  to 
appear  on  the  record,  that  a  correct  judgment  may 
be  given  upon  that  meaning  after  it  has  been  ascer- 
certained  by  a  jury. 

It  may  next  be  considered  what  variances  be- 
tween the  words  stated  and  those  proved,  are  fatal 
to  the  action. 

The  variance  must  consist  either  in  the  addition 
or  omission  of  one  or  more  words,  or  in  the  substitu- 
tion of  one  word  for  another.    First,  in  the  addition. 

It  is  not  necessary,  in  case  of  verbal  slander,  to 

*  Zenobio  v.  Axtell,  6  T.  R.  162-  +  126. 


-J76 

prove  all  the  words,   provided  such  of  them    be 
proved  as  are  material. 

The  plaintiff  declared  that  the  defendant  said  of 
him,  "  He  is  a  maintainer  of  thieves,  and  a  strong 
thief."  The  jury  found  the  whole  to  have  been  said 
except  the  word  strong,  and  it  was  adjudged  for  the 
plaintiff.*(l) 

And  even  where  special  damage  is  the  gist  of 
the  action,  it  is  sufficient  to  show  that  the  loss  was 
sustained  in  consequence  of  any  of  the  words  laid 
in  the  declaration.! 

But  if  all  the  words,  as  laid,  constitute  but  one 
charge,  the  whole  must  be  proved. 

The  declaration  stated  that  the  defendant  said  of 
the  plaintiff,  "  He  is  selling  his  coals  at  one  shilling 
a  bushel,  to  pocket  the  money,  and  become  a  bank- 
rupt to  cheat  his  creditors."  Upon  trial,  the  words 
"  and  become  a  bankrupt,"  were  not  proved,  and 
the  plaintiff  was  nonsuited,  t 

And  the  reason  applies  with  equal  force  in  the 
case  of  libel,  where  the  addition  of  a  word  not 
proved  would  be  fatal,  if  it  at  all  affected  the  sense, 
whether  the  words  were  set  out  under  an  inter 
alia  or  ad  tenor  em. 

With  respect  to  variances  from  omission,  it  seems 
in  all  cases  sufficient  to  set  out  the  words  which  are 
material,  and  it  is  not  even  necessary  to  state  words 
which  may  qualify  the  objectionable  ones  ;  and  in 
the  case  of  libel,  it  may  be  averred  in  uno  quorum 

*  Burgis's  case,  Dyer,  75.  j  Holt,  R.  1 39- 

$  Flower  v.  Pedley,  2  Esp.  R.  491. 

(1)  Uersh  v.  Ringwall,  3  Yeates,  508.     Ckipmvi  v-  Cook,  2  Tyl-  Rep.  43G. 
Bloom  v.  Bloom,  5  Serg.  &'Rawle,  391. 


276 

conlinetur  inter  alia,  fyc.  ;*  for,  if  something  else 
were  added,  which  did  in  fact  qualify  the  objec- 
tionable words,  it  may  be  given  in  evidence  on  not 

guilty.f 

In  Sir  J.  Sydenham's  case,t  an  action  was 
brought  for  these  words  :  "If  Sir  John  Sydenham 
might  have  his  will,  he  would  kill  all  the  true  sub- 
jects of  England,  and  the  king  too ;  and  he  is  a 
maintainer  of  papistry  and  rebellious  persons." 
The  defendant  pleaded,  that  he  spake  other  words, 
absque  hoc,  that  he  spake  these.  The  jury  find 
that  he  spoke  these  words :  "  I  think,  in  my  con- 
science, if  Sir  John  Sydenham,"  &c.  and  found  all 
the  other  words  verbatim,  and  conclude  si  super 
totam  materiam,  he  spake  the  words  forma  qua  the 
plaintiff  declared,  they  find  for  the  plaintiff  to  his 
damage  of  160  marks,  if  otherwise,  for  the  defend- 
ant. And  three  of  the  judges,  Montague,  C.  J. 
Croke,  and  Dodderidge,  J.  held,  that  the  plaintiff 
was  entitled  to  judgment,  since  the  other  words 
found  were  not  words  of  extenuation  or  alteration 
of  the  sense  of  the  former  words,  but  rather  en- 
forced them,  and  that  there  was  no  cause  to  stay  the 
plaintiff's  judgmental ) 

For  though  the  plaintiff  declared  of  more  words 
than  the  defendant  spake,  yet  he  declaring  truly  that 
the  defendant  spake  those  words,  upon  the  evi- 
dence it  appears  that  he  spake  these  words  which 
are  actionable,  and  the  words  added,  diminish 
not,  nor  are  an  alteration  of  the  sense  of  the  words 
whereof  he  declares  ;  wherefore,  although  the  issue 

*  R.  v.  Bcare,  4  Rep.  t  8  Mod-  329.  t  Cro.  J.  407- 


•O  Spp  Mkmson  v.  Hartley,  1  M'Cord's  Rep.  203- 


217 


be  specially  found,  yet  the  plaintiff  shall  have  judg- 
ment. 

The  fourth  judge  (Houghton)  was  of  opinion, 
that  the  omission  of  part  of  the  words  proved, 
though  the  sense   was  unaltered,  was  a  fatal  va- 


riance. 


A  writ  of  error*  was  afterward  brought  upon 
this  judgment,  and  one  ground  of  error  assigned 
was,  the  variance  between  the  words  declared  upon 
and  proved;  and  of  this  opinion  were  Hobart, 
C.  J.  of  the  Common  Bench,  Winch,  and  Den- 
ham  ;  but  Tanfield,  Chief  Baron,  Warburton,  Brom- 
ley, and  Hulton,  were  of  a  contrary  opinion,  where- 
upon the  judgment  was  affirmed. 

And  the  rule  is  the  same  with  respect  to  written 
slander ;  for  though,  in  the  different  reports  of  the 
case  of  the  Queen  v.  Drake,  a  distinction  is  made 
between  cases  where  the  libel  is  set  out jaxta  teno- 
rem,  or  in  hcec  verba,  and  where  it  is  set  out  under 
an  inter  alia,  there  seems  to  be  little  distinction  be- 
tween them,  since,  under  the  latter  averment,  some 
of  the  words  must  be  proved  as  laid,  and  any  varia- 
tion  from  the  sense  would  be  fatal.     It  is  to  be  ob- 
served too,  that  the  word  tenor  does  not  necessarily 
imply  an  undertaking  to  set  out  a  copy  of  the  whole 
publication  without  addition  or  diminution,  since, 
in  the  King  v.  Beare,  where  the  point  was   much 
considered,  the  prefatory  words  were,  m  uno  quo- 
rum continetur  inter  alia  juxta  tenor  em,  fyc.  where 
both  inter  alia  and  juxta  tenorem  were  used,  and 


*  Mich.  16  Jac- 


278 

no  objection  was  taken  on  the  ground  of  any  incon- 
sistency in  the  allegation.* 

The  reasoning  of  the  three  judges  in  Sir  J.  Sy- 
denham's case,  applies  equally  to  the  case  where 
the  libellous  part  only  of  an  offensive  publication 
is  set  out ;  for  though,  on  evidence,  it  appear  that 
more  was  published  than  appears  on  the  face  of 
the  indictment  or  declaration,  it  is  nevertheless  true 
that  the  defendant  published  the  part  complained  of 
as  alleged,  although  he,  at  the  same  time,  published 
other  matter. 

If  the  additional  words  proved  be  altogether  un- 
important, their  insertion  would  have  been  nuga- 
tory ;  if  their  effect  be  to  alter  the  sense  of  the  part 
already  set  out,  the  defendant  will  have  the  advan- 
tage of  it  by  giving  it  in  evidence  under  the  general 
issue. 

One  count  of  a  declaration  stated  the  words  of  a 
libel  as  follows  :  "  My  sarcastic  friend,  by  leaving 
out  the  repetition  or  chorus  of  Mons.  T.'s  poem, 
greatly  injures  the  tout  ensemble,  or  general  and 
combined  effect."  The  words  proved  in  evidence 
were  "  My  sarcastic  friend  mopos,  by  leaving  out," 
&c.  And  it  was  held  by  Lord  Ellenborough,  C.  J. 
upon  trial  of  the  cause,  that  there  was  a  material 
variance  between  the  libel  declared  upon  in  that 
count  and  the  libel  proved,  and  that  the  plaintiff 
was  not  entitled  to  recover  on  that  count. f  (1) 

*  See  Haw.  P.  C.  c.  46.  s.  140.  Leach's  C.  C  L-  158. 172.  ;  from  which  it 
appears,  that  in  criminal  cases  where  the  descriptive  term  "  tenor"  is  used,  a 
variance  in  the  spelling  of  a  word  will  not  be  fatal,  unless  the  sense  be  altered. 

t  Tabart  v-  Tipper,  Camp.  N-  P.  350. 


(1)  Cartwright  v.  JVrighl,  5  Barn-  &  Aid-  615.  S-  C  1  Dow-  &  Ryl.  230- 
Harris  v.  Lawrence  et  al.  1  Tyl.  Rep.  156.  Sauthwick  v.  Stevens,  10  Johns.  443. 
3  Johns.  57. 


27\) 

But  though  it  is  not  necessary  to  state  the  whole 
of  a  libellous  publication,  yet,  if  the  most  offensive 
parts  be  selected,  the  passages  which  are  not 
continuous  in  the  original  must  be  set  out  so  in 
pleading,  since  any  alteration  of  the  sense  arising 
from  such  a  new  arrangement  would  be  a  ground  of 
nonsuit.* 

The  correct  mode  of  setting  out  two  selected 
passages  in  the  same  count,  is  by  saying,  "  In  a 
certain  part  of  which  said  libel  there  was  and  is  con- 
tained, &c.  and  in  a  certain  other  part  of  which  said 
libel  there  was  and  is  contained,"  &c. 

With  respect  to  the  alteration  of  a  single  letter, 
the  rule  seems  to  be,  that  if  the  sense  be  thereby 
altered,  the  variance  will  be  fatal,  but  not  other- 
wise.! 

Provided  the  sense  be  not  altered,  the  variance  is 
not   material  even  in  an  indictment   for    perjury. 
In  the  case  of  the  King  v.  Beech,^  a  variance  was    . 
relied  upon  in  favour  of  the  prisoner  between  the  / 
indictment   for   perjury  and  the  affidavit  on  which  / 
the  prosecution   was    founded.     In   the    affidavit, 
the   defendant  swore   that  he  understood  and  be- 
lieved, &c.     The  assignment  of  perjury  in  the  in- 
dictment  was,  that    he  had  falsely  sworn   that   he 
undertood  and  believed,  &c.  omitting  the  letter  si 

Lord  Mansfield — "  This  is  an  application  for 
a  new  trial  in  an  indictment  for  perjury,  upon  the 
ground  of  a  material  variance  betu  een  the  affidavit 
and  the  indictment,  the  letter  s  beings  left  out  in 
the  word  understood.  We  have  looked  into  all 
the  cases   on  the   subject,  some  of  which  go  to  a 

*  1  Camp.  N«  P.  C  353.         t  3  Salk.  224.         X  Leach,  C.  C  L.  15S 


/ 


280 

great  length  of  nicety  indeed,  particularly  the  case 
in  Hutton,  where  the  word  indicari  was  written  for 
indictari,  but  that  case  is  shaken  by  the  doctrine 
laid  down  in  Hawkins.* 

"The  true  distinction  seems  to  be  taken  in  the 
Queen  v.  Drake,!  which  is  this ;  that  where  the 
omission  or  addition  of  a  letter  does  not  change  the 
word  so  as  to  make  it  another  word,  the  variance 
is  not  material."!  (1) 

If  the  omission  even  of  a  letter  render  a  word  of 
a  different  signification  from  that  contained  in  the 
libel,  the  variance,  it  seems,  will  be  fatal.§(2) 

As,  when  the  word  not  was  stated  instead  of  nor  ; 
for  it  was  said,  if  in  such  a  case  a  letter  could  be 
amended,  why  not  a  word,  why  not  a  sentence,  and. 
where  would  the  non  ultra  be  found  :  that  this  was 
I   not  so  small  a  variance  of  a  letter,  as  in  false  spell- 
\  ing  or  abbreviations,  as  if  gaine  instead  of  gain, 
*  where  the  word  and  sense  would  be  the  same  ;  but 
I  that,  in  the  principal  case,  the  words  were  different 
*and    of   different   significations,   different  parts    of 
speech,  the  one  an  adverb,  the  other  a  conjunction, 
the  one  positive,  the  other  relative.    It  was  observed 
too,  that  though  the  objection  was  in  appearance 
trivial,  the  consequences  were  weighty ;  and  that  if 
the  variance  were  not  considered  as  fatal,  the  judges 
would  have  too  great  power  in  cases  of  treason, 
where  the   decision  would   be   quoted  as  a  pre- 
cedent. 

*  2  Hawk.  PI-  C.  c.  46.  s.  190.  t  Salk.  6G0. 

See  Hart's  case,  Leach,  C  G.  L.  172.     Douglas,  194-       §  3  Salk.  224. 


(1)  Lewis  v.  Few,  5  Johns.  Hep.  1.     See  page  27  to  32. 

(2)  Walsh  v.  The  State,  2  M'Cord's  Rep.  249. 


Next  it  is  to  be  considered  whether  die  words 
are,  upon  the  face  of  them,  illegal,  or  require  the 
aid  of  some  extrinsic  circumstances  to  explain  their 
quality.  It  may  be  laid  down  as  a  general  rule,  that 
where  the  slanderous  charge  or  imputation  can  be 
collected  from  the  ivords  themselves,  it  is  unneces- 
sary to  make  any  averment  as  to  circumstances,  to 
Whose  supposed  existence  the  words  refer.  For  the 
slander,  which  is  the  ground  of  proceeding,  appear- 
ing on  the  very  face  of  the  publication,  it  is  a  matter 
of  indifference  as  to  the  cause  of  action,  whether 
the  circumstances  referred  to  really  existed,  or  were 
invented  by  the  defendant.  In  the  latter  case,  in- 
deed, the  moral  guilt  of  the  slanderer  may  be  en- 
hanced in  proportion  to  his  wanton  disregard  of 
truth ;  but  it  would  be  unreasonable  on  that  account 
to  impose  upon  the  plaintiff  in  any  case,  the  diffi- 
culty of  proving  either  the  truth  or  falsity  of  the 
facts  presumed  by  the  defendant. 

Thus,  when  a  person  says  of  another,*  "  That  is 
the  man  who  killed  my  husband,"  no  averment  of 
the  husband's  death  is  necessary,  for  the  defendant's 
words  have  ascertained  the  death. 

The  defendant  said  to  the  plaintiff, f  "Thou  hast 
given  J.  S.  9/.  for  forswearing  himself  in  chancery, 
and  hast  hired  him  to  forge  a  bond."  After  verdict 
for  the  plaintiff,  it  was  moved  in  arrest  of  judgment, 
that  the  declaration  contained  no  allegation  that  any 
suit  was  in  chancery,  or  that  J.  S.  forswore  himself 
in  his  answer,  or  as  a  witness,  or  that  the  plamtifl 
«uborned  J.  S.  to  forswear  himself,  or  show  any  par  - 

*  Button  v.  Hey  wood  and  his  Wife,  IS  Mod.  24.     Vent.  117. 

•  Cio  Car.  337. 

se 


' 


2&2 

ticular  wherein  he  forswore  himself.  But  it  wa^ 
held  that  these  averments  were  immaterial ;  for  if 
J.  S.  never  was  sworn,  it  was  scandalous  in  the  de- 
fendant to  say  that  the  plaintiff  procured  J.  S.  to 
forswear  himself  in  a  court  of  record,  although  it 
was  merely  false,  because  he  never  was  sworn. 
And  that  as  to  the  bond,  though  it  was  not  said  that 
J.  S.  had  forged  a  bond,  the  charge  against  the 
plaintiff  was  nevertheless  scandalous. 

In  an  action  for  these  words,*  "  Thou  hast  killed 
thy  master's  cook."  On  motion  in  arrest  of  judg- 
ment, it  was  held  unnecessary  to  make  any  aver- 
ment, showing  who  the  plaintiff's  master  was,  or  that 
he  was  the  master  of  the  person  slain,  because  the 
words  in  themselves  imputed  slander. 

In  Wilner  v.  Hold,  the  words  were,  "  Thou  art 
a  rogue  and  a  rascal,  and  hast  killed  thy  wife." 
On  motion  in  arrest  of  judgment,  among  other 
causes,  it  was  alleged  that  an  action  lay  not  for  the 
words,  because  it  was  not  shown  that  the  wife  was 
dead,  or  how  she  was  killed  ;  but  the  objections 
wrere  overruled,!  and  the  plaintiff  had  judgment. 

There  are,  notwithstanding,  many  cases  in  the 
books  where  averments  of  the  kind  have  been 
deemed  indispensable  ;  but  since  these  are  contra- 
dicted by  the  more  modern  decisions,}:  and  are 
rather  remarkable  for  their  subtlety  than  for  either 
convenience  or  consistency,  it  would  be  a  waste 
of  time  to  take  further  notice  of  them  than  by  citing 
a  few  specimens. 

After  verdict  for  the  words,  "  Thou  art  as  arrant 
a  thief  as  any  is  in  England,"§  it  was  held,  in  arrest 

N   Cooper  v.  Smith,  Cto.  J.  423.  ^ee  1  Vin.  Ab.  513.  pi.  1,  2. 

I  P^alfp  v    Oldham-,  Cowp.  275.  5     'osier?    Browning,  Cm.  .t  fi3" 


■&3 

of  judgment,  that  the  words  were  not  actionable, 
for  want  of  an  averment  that  there  was  any  thief  in 
England. 

After  verdict  for  the  words,  "  Thou  art  a  murther- 
er,  for  thou  art  the  fellow  that  did  kill  Mr.  Sydnam's 
man,"  judgment  was  reversed,  for  want  of  an  aver- 
ment that  any  of  Mr.  Sydnam's  men  had  been 
slain.* 

And  where  the  words  of  the  defendant  are  general, 
no  explanation  is  necessary  to  render  them  more  par- 
ticular. 

The  defendant*  charged  the  plaintiff  with  having 
forsworn  himself  in  his  answer  to  a  bill  in  chancery. 
After  verdict  for  the  plaintiff,  it  was  moved  in  arrest 
of  judgment,  that  the  particulars  of  the  perjury  im- 
puted were  not  pointed  out  in  the  declaration,  and 
that  many  indictments  for  perjury  had  been  quashed, 
for  not  showing  the  perjury  to  have  been  in  a  mate- 
rial point.  But  the  court  held,  that  though  indict- 
ments ought  to  show  the  cause  of  perjury,  yet,  that 
in  an  action  for  words  which  is  grounded  upon  the 
speech  of  another,  the  charge  cannot  be  enlarged 
farther  than  the  other  spoke. 

Next,  with  respect  to  the  connexion  of  the  words 
with  the  plaintiff,  where  they  are  intrinsically  action- 
able, and  with  extrinsic  circumstances,  when  such 
are  necessary  to  make  the  actionable  quality  appa- 
rent on  the  face  of  the  record. 

Formerly  it  was  the  practice  to  aver,  that  the  de- 
fendant spoke  the  words  in  a  certain  discourse  which 

*  Barrons  v.  Ball,  Cro.  J.  331. — See  a  conjecture  upon  the  original  reason 
of  this  scrupulous  nicety,  p.  81. 

t  Sir  T*.  Snowde  v. ,  Cro.  Car.  32! , 


mi 

he  had  with  other*,  or  with  the  plaintiff  himself  in 
the  presence  of  others,  concerning  the  plaintiff. 
This  was  technically  called  laying  a  colloquium,  and 
till  the  case  of  Smith  v.  Ward,*  it  seems  to  have 
been  doubted  whether  a  declaration  without  a  collo- 
quium would  be  good.  In  that  case,  it  was  alleged 
that  the  defendant  said  of  the  plaintiff,  "  He  (innu- 
endo the  plaintiff)  is  a  thief;"  and  the  court,  on  be- 
ing informed  that  it  was  the  common  course  to  de- 
clare that  he  said  de  prcrfato  querente  hate  verba, 
held  it  to  be  sufficient  without  a  colloquium. 

But  though  the  custom  was  to  lay  a  colloquium, 
it  was  always  held  necessary  to  aver  that  the  words 
were  spoken  concerning  the  plaintiff. 

Where  actionable  words  are  spoken  to  a  plaintiff, 
it  is  sufficient  to  lay  a  colloquium  with  him  without 
an  express  averment  that  the  words  were  spoken 
de  querente  ;  since  it  cannot  but  be  intended  that 
the  words  were  spoken  to  him  with  whom  the  con- 
versation is  alleged  to  have  been  had.f 

But  where  actionable  words  are  spoken  in  the 
third  person,  as,  "He  is  a  thief;"  though  a  col- 
loquium of  the  plaintiff  be  laid,  it  is  necessary  to 
aver  that  the  words  were  spoken  concerning  the 
plaintiff.:}: 

And  it  is  not  sufficient  in  such  case  to  connect 
the  words  with  the  plaintiff  by  means  of  an  innu 
endo.§(l) 

*  Cro.  Jac.  674.     3  Salk.  323.     Sir  T.  Ray,  85. 
| Roll.  Ab.85.pl.  3.     1  Will.  Saun.  242.     (a)  n.  3. 

fioll.  Ab.  85.  1.  30.     1  Sid.  62.     1  Com .  Dig.  tit.  Defam.  G.  7. 
§  Cro.  J.  126. 


(1)  Cave*.  Sheleretux.  2  Munf.  Rep.  193.     See  Vsey  v.  Smith,  7  Johnf. 
Rep.  359, 


^6 

liut  where  a  colloquium  is  laid,  and  there  is  an  in 
nuendo  of  the  plaintiff,  it  seems  the  want  of  a  direct 
averment  must  be  pointed  out  by  special  demurrer, 
and  that  it  will  be  intended  after  verdict,  or  upon 
general  demurrer,  that  the  words  were  spoken  of 
the  plaintiff",  but  that  where  no  communication  is 
laid  concerning  the  plaintiff,  the  omission  of  such  an 
averment*  is  fatal  to  the  declaration. 

Where  the  person  slandered  is  pointed  out  by 
the  prefatory  words  thy  son,  thy  brother,  &c.  or  my 
son,  my  brother,  which  description  may  possibly  ap- 
ply to  several,  from  the  current  decisions  it  seems, 
that  the  plaintiff  must  aver  that  he  stood  in  the  de- 
scribed relation,  and  that  he  was  the  son  or  the  bro- 
ther of  the  person  addressed  in  the  former  case,  or 
of  the  speaker  in  the  latter,  and  that  a  general  alle- 
gation that  the  words  were  spoken  of  and  concern- 
ing the  plaintiff  is  insufficient. f 

So,  where  the  words  were,  "  Go,  tell  my  land- 
lord (innuendo  the  plaintiff,)  he  is  a  thief.":}:  Judg- 
ment was  given  against  the  plaintiff,  for  not  having 
averred  that  he  was  the  landlord  of  the  defendant, 
although  he  had  averred  that  the  words  were  spoken 
of  himself.  And  it  is  not  sufficient  to  bring  the 
plaintiff  within  the  description  by  means  of  an  in- 
nuendo^ 

And  even  where  the  description  could  by  possi- 
bility apply  to  one  person  only,  it  has  been  held 
that  an  averment  is  necessary,  to  show  that  it  was 
applied  to  him. 


*  9  Roll.  It.  244.     Skutt  v.  Hawkins,  1  Will.  Saun.  242.  a.  n-  3. 
t    1  Roll.  84. 1.  15.  30.  50.  85.  1.  45.     Cro.  Car.  443.     Jon.  376.     Cro.  Elix. 
416,  even  after  verdict.  J  Cro.  Car.  420. 

+  Pelamore  v.  Heskins,  Hill.  11  Car.  K.  B.     1  Vin.  Ab.  528 


288 

The  plaintiff  declared  that  the  defendant  having 
a  discourse  concerning  the  plaintiff  with  divers 
other  persons,  said  these  words  of  the  plaintiff, 
"  Your  father  (meaning  the  plaintiff)  hath  struck 
and  killed  Nicholas  Russell."  And  after  verdict 
for  the  plaintiff,  judgment  was  arrested,  because  it 
was  not  averred  that  the  plaintiff  was  father  to  him 
to  whom  the  words  were  spoken.* 

In  Shalmer  v.  Foster,!  the  declaration  stated,  that 
"The  wife  of  the  defendant  spake  of  the  foresaid 
plaintiff  to  Ann  Rochester,  the  plaintiffs  mother, 
these  words,  "  Where  is  that  lying  thief,  thy  sonne  ? 
&c."  And  it  was  moved  in  arrest  of  judgment,  that 
the  words  were  uncertain,  no  precedent  communi- 
cation being  alleged  to  be  of  the  plaintiff,  nor  that 
he  was  the  only  son  of  the  said  Ann  Rochester,  to 
whom  the  words  were  spoken,  and  that  it  might 
be  that  she  had  divers  sons,  and  every  of  them 
might  have  an  action  as  well  as  the  plaintiff,  and 
that  there  was  an  ambiguity  who  was  meant  by  the 
words.  And  Whitelock  and  Croke  were  of  that 
opinion ;  and  the  latter  cited  the  cases  of  Harvey 
and  Chamberlain,^  and  of  Burnet  and  Codman,§ 
where  for  such  words  it  was  adjudged  for  the  de- 
fendant. But  Hyde  C.  J.  and  Jones,  J.  doubted 
thereof,  because  it  was  alleged  that  she  spoke  of 
the  plaintiff,  and  was  found  guilty.  But  it  was  an- 
swered, that  so  were  the  words  in  every  declara- 
tion, and  that  so  it  was  in  the  precedents  cited.)! 

*  Hil.  1052.     Rot.  1037.     1  Vin.  Ab.  530.     Golds.  187.     Cro.  Eliz.  416. 
439.     Cro.  Car.  92.  173.     Mo   305. 
t  Cro.  Car.  177.     But  see  Cro.  J.  107. 
V.  T.  20  J.  1.  §  T.  T.  5  .1.  1.  I|  The  court  adjourned 


287 

At  this  day,  after  so  many  of  the  technical  met 
ties,  with  which  actions  of  this  description  were 
formerly  encumbered,  have  been  defeated,  it  may 
well  be  doubted  whether  much  attention  would  be 
paid  to  these  cases.  The  real  end  and  object  of 
such  averments  is,  to  show  with  certainty  that  the 
plaintiff  is  the  person  aimed  at  by  the  defendant ; 
and  though,  upon  the  face  of  the  words  themselves, 
their  application  may  be  ambiguous,  as  where  the 
defendant  says,  thy  son,  or  thy  brother,  yet  there 
appears  no  want  of  certainty  upon  the  record,  when 
it  is  alleged  that  the  words  were  spoken  of  the 
plaintiff ;  and  whether  they  were  so  applied  or  not, 
is  a  matter  of  evidence,  to  be  proved  by  showing 
that  he  did  stand  in  the  relation  specified,  and  with- 
out due  proof  of  which  the  jury  could  not  possibh 
find  the  truth  of  the  averment  that  the  words  were 
spoken  concerning  him. 

Considering,  however,  the  great  number  of  ex- 
press decisions  upon  this  subject,  it  would  not  be 
prudent  to  omit  a  special  averment. 

Where  the  description  may  apply  to  several  per- 
sons,  as  brothers  or  sons,  it  is  unnecessary  for  the 
plaintiff  to  aver,  that  he  was  the  only  brother  or 
only  son,  so  as  to  make  it  appear  that  the  descrip- 
tion applied  to  himself  exclusively.  This  objection, 
however,  appears  to  have  been  frequently  taken ; 
and  in  Wiseman  v.  Wiseman,*  where  the  defendant 
spoke  the  words  de  prcefato  querent e  existente  fratre 
suo  naturali,  on  motion  in  arrest  of  judgment,  it  was 
held  by  Yelverton,  J.  that  the  words  were  too  un- 
certain ;  that  words,  to  be  actionable,  ought  to  inv 

•  Gro   •'•  107 


port  in  themselves  precise  slander  without  ambi 
guity,  so  that  every  one  who  heard  them  might  in- 
tend of  whom  they  were  spoken ;  for  otherwise,  it 
it  could  be  helped  by  the  averment  of  the  plaintiff, 
every  one  who  was  his  brother  might  make  the 
same  averment  and  have  an  action,  which  would  not 
be  reasonable.  But  it  was  afterward  adjudged,  by 
all  the  judges,  for  the  plaintiff. (1) 

A  distinction  was  taken  in  the  last  case  by  Tan- 
field,  J.,  between  words  importing  in  themselves 
apparent  Uncertainty,  and  those  which  might  be  as- 
certained by  intendment.  That,  in  the  first  case, 
no  averment  would  aid  the  uncertainty,  but  that  in 
the  latter,  it  might  be  aided  by  an  averment  and 
verdict;  and  therefore,  if  the  words  had  been  "  one 
of  my  brothers  is  perjured,"  there  would  be  in  them 
an  apparent  uncertainty  ;  and  that,  although,  one  of 
the  brothers  should  bring  the  action,  and  aver  that 
they  were  spoken  of  him,  yet  that  because  it  ap- 
peared to  the  court  that  ihere  were  divers  brethren, 
and  that  it  did  not  appear  to  any  of  whom  he  spake* 
no  action  would  lie,  although  the  defendant  should 
be  found  guilty  by  verdict. 

But  it  has  since  been  held,*  that  for  disjunctive 
words,  as  that  A.  or  B.  committed  such  a  felony, 
both  A.  and  B.  are  entitled  to  recover,  and  it 
would  probably  now  be  decided  upon  the  same 
principle,  that  in  the  case  put  by  the  learned  Judge, 
each  brother  would  be  allowed  to  maintain  his 
action. 

•   Harrison  v.  Tuornburougli,  10  Mod-  K'O. 


(1)  Set-  Gidnty  v.  Elatfe,  11  Joli:;*.  Rep-  54- 


289 

When  the  plaintiffs  name  is  mentioned,  though 
a  further  description  be  given,*  the  general  aver- 
ment is  sufficient,  without  a  special  allegation  that 
such  further  description  applied  to  the  plaintiff.  As, 
where  the  speaking  is  alleged  to  be  of  the  plaintiff, 
and  the  words  are  stated,  "  T.  (innuendo  the  plain- 
tiff) is  thy  brother,  &c."  it  is  sufficient  without  any 
other  averment. 

In  Nelson  v.  Smith,f  the  words  were,  "  Captain 
Nelson  is  a  rogue  and  a  thief,  and  hath  stolen  away 
my  goods  ;"  and  it  was  held,  that  the  declaration 
was  good  without  any  averment  that  he  was  a  cap- 
tain, or  known  by  that  name,  inasmuch  as  there  was 
a  communication  of  the  plaintiff,  and  it  was  averred 
that  the  words  were  spoken  of  him. 

The  general  rule  is,  that  where  the  party  can 
show  that  he  was  intended  by  the  defendant,  he 
may  maintain  an  action,  whatever  be  the  mode  of 
description. 

Thus,  for  the  words,  "  The  parson  of  Dale  is  a 
thief;"  it  was  held  that  he  who  was  parson  of  Dale 
at  the  time  the  words  were  spoken  might  maintain 
an  action  4 

The  defendant  said,§  "  That  murderous  knave 
Stroughton  lay  in  wait  to  murder  me  ;"  and  the  ac- 
tion brought  by  Thomas  Stroughton  was  held  main- 
tainable. 

When  the  actionable  quality  is  derived  from  ex- 
planatory  circumstances  extrinsic  of  the  words,  the 
connexion  ivith  those  circumstances  must  appear. 

*  Cro.  Eliz.  429: 

t  22  C  1.  B.  R.    See  also  Osborne  v.  Brookes,  1  Vin.  Ab.  529.     1  Roll. 
Ab.  85. 
J  3  Bols-  326*  §  Shepp.  Ac.  59 

37 


290 

I  he  technical  mode  of  effecting  this  is,  by  first 
stating  in  the  introductory  part  of  the  declaration 
those  extrinsic  facts  by  reference  to  which  the 
words  complained  of  become  actionable  ;  secondly, 
averring  that  the  words  related  to  those  facts  by 
laying  a  colloquium,  as  it  is  usually  termed ;  and 
thirdly,  connecting,  by  averments  called  innuendos, 
such  parts  of  the  publication  as  want  explanation, 
with  the  introductory  facts  previously  exhibited  upon 
the  record. 

By  this  process,  the  extrinsic  facts  incorporated, 
as  it  were,  in  the  defendant's  publication,  become 
an  integral  part  of  the  plaintiff's  case,  and  the  whole 
forms  one  entire  slanderous  charge  upon  the  face  of 
the  record. 

The  nature  and  certainty  of  these  two  kinds  of 
averments  are  next  to  be  considered. 

First,  of  the  colloquium*  or  general  averment, 
connecting  the  whole  of  the  publication  with  the 
introductory  facts. 

Where  the  words  are  actionable,  as  affecting  the 
plaintiff  in  a  special  character,  an  averment  that  they 
were  applied  to  him  in  that  particular  character  is 
Hscessary,f  unless  that  application  necessarily  appear 
from  the  words  themselves  ;  in  which  case,  the  ge- 
neral allegation  that  they  were  spoken  concerning 
the  plaintiff*,  is  sufficient. 

The  defendant  said  of  a  tradesman,  +  "  He  is  a 
sorry  pitiful  fellow,  and  a  rogue,  he  compounded  his 

*  To  avoid  circumlocution,  tbe  term  colloquium  is  used,  not  in  its  strict,  but 
in  its  technical  sense,  to  signify  this  general  averment. 

t  Savage  v.  Robery,  2  Salk.  694.     Savile  v.  Jardine,  2  H.  Bl.  531.     Burnet 
v.Wells,  12  Mod.  420-     Str.  1169.     3  Salk.  32C     Ld- Ray.  610-     S  Mod- 27 1 
<>o  Car.  417. 

*  T  nrd-Ravmond.  14B<>      Stanton  t.  Smith* 


291 

debts  at  live  shillings  in  the  pound ;"  and  the  decla- 
ration was  held  good,  without  an  express  colloquium 
of  the  trade. (1) 

So,  where  the  words  published  of  a  tradesman* 
were,  "  Have  a  care  of  him,  do  not  deal  with  him, 
he  is  a  cheat,  and  will  cheat  you  ;  he  has  cheated  all 
the  farmers  at  Epping,  and  dares  not  show  his  face 
there,  and  now  he  is  come  to  cheat  at  Hatfield." 
And  the  court  said,  the  words  themselves  supply  a 
colloquium,  they  appear  to  be  spoken  of  his  trade. 

So,  where  the  words  spoken  of  a  justice  of  the 
peace  were,  "I  have  been  often  with  Sir  John  Isham 
for  justice,  but  could  neyer  get  any  thing  at  his 
hands  but  injustice  ;"  it  was  held  that  the  words  were 
actionable  without  colloquium,  and  that  the  court 
would  intend  that  the  words  were  spoken  of  him  as 
a  justice,  and  not  as  a  private  man.f(2) 

So,  where  the  defendant  said  of  an  attorney, 
"  He  is  a  common  barretor ;"  it  was  held  unne- 
cessary to  aver  that  the  words  were  spoken  of  the 
plaintiff  in  his  profession,  for  the  court  would  intend 
it,  and  that  words  were  to  be  construed  secundum 
conditionem  personarum  of  whom  they  were  spoken. 

So,  where  the  words  spoken  to  a  merchant  were, 
"  He  is  not  worth  a  groat,  he  is  100/.  worse  than 

nought.''^ 

So,  where  the  defendant  said  to  a  physician, § 
"  Thou  art  a  drunken  fool  and  an  ass,  thou  wert 

*  2  Lev.  62.  f  Cro-  Car.  15.  102-  459.     Cro.  J-  557-     1  Lev-  280- 

1  Cro-  Car-  265.  $  Cro-  Car-  270. 


(1)  Davis  v.  Davis,  1  Nolt  &.  M'Cord's  Rep.  290-     See  also  Hoyle  v.  Yomg, 
I  Wash-  Rep.  150- 

(2)  But  see  Oakley  v-  Partington,  1  Johns-  Ca.  120- 


392 

never  a  scholar,  and  art  not  worthy  to  speak  to  a 
scholar."  The  words  were  held  actionable,  though 
no  communication  was  laid  of  the  plaintiff's  pro- 
fession. 

In  general,  where  facts  extrinsic  of  the  words  and 
of  the  plaintiff's  character  are  necessary  to  support 
the  action,  the  plaintiff  must  aver  that  the  publica- 
tion  was  made  in  reference  to  those  facts. 

The  declaration  stated  that  the  plaintiff,*  a  con- 
stable of  D.,  was  sworn  before  the  justices  at  their 
quarter  sessions  concerning  an  affray  made  by  the 
defendant  upon  one  F.,  and  that  the  defendant  then 
and  there,  in  the  said  court  and  in  the  presence  of 
the  justices,  said,  he  (innuendo  the  plaintiff)  is  for- 
sworn, and  it  was  held,  the  declaration  was  bad  with- 
out a  colloquium  of  the  oath  so  taken,  because  it 
was  necessary  for  the  declaration  to  show  that  the 
words  intended  a  false  oath  in  a  court  of  record. 

The  declaration  stated,!  that  the  plaintiff  had  put 
in  an  answer  upon  oath  to  a  certain  bill  filed  against 
him  in  the  court  of  exchequer  by  the  defendant,  and 
that  the  latter,  in  a  certain  discourse  which  he  then 
and  there  had  with  one  R.  W.,  the  plaintiff's  servant, 
said,  "  I  have  no  doubt  you  will  forswear  yourself, 
as  well  as  your  master  (the  plaintiff)  has  done,  be- 
fore you,"  meaning  and  insinuating  thereby  that  the 
plaintiff  had  perjured  himself  in  what  he  had  sworn 
in  his  aforesaid  answer  to  the  said  bill  so  filed  against 
him  as  aforesaid. 

In  another  count,  the  words  spoken  by  the  de- 
fendant to  the  said  R.  W.,  the  plaintiff's  servant,  were 


*  Drake  v.  Corderoy,  in  error,  Cro.  Car-  2S 
t  Hawkes  v.  Hawkey,  8  East,  427. 


293 

laid  thus;  ••  Four  master  (meaning  the  plaintiff)  has 
both  cheated  people  out  of  their  wages,  and  forsworn 
himself;"  thereby  meaning  that  the  said  plaintiff  had 
perjured  himself  in  the  aforesaid  answer,  so  put  in 
by  him  to  the  bill  so  filed  against  him  as  aforesaid. 
It  was  held,  after  verdict,  that  both  these  counts 
were  bad,  on  the  ground  that  there  was  no  collo- 
quium laid  of  the  plaintiff's  answer  to  the  bill  in 
chancery,  and  that  it  did  not  appear  that  the  words 
were  spoken  in  relation  to  that  answer,  and  that 
without  such  ail  averment  the  innuendo  was  unwar- 
ranted. 

The  colloquium  ought  to  extend  to  the  whole  of 
the  prefatory  matter  necessary  to  render  the  words 
actionable.  The  plaintiff  declared,*  that  some  evil 
persons  unknown,  had  feloniously  shorn  the  sheep 
of  C,  and  that  there  being  a  communication  be- 
tween the  defendant  and  another,  concerning  the 
shearing  of  those  sheep,  the  defendant  said,  "  I  do 
know  who  did  shear  the  sheep  ;"  and  being  asked 
who  it  was,  he  replied,  that  it  was  the  plaintiff', 
innuendo  felonice,  and  Houghton  and  Doderidge, 
Justices,  against  the  opinion  of  Croke,  J.  held, 
that  the  words  were  not  actionable,  since  the  collo- 
quium was  of  the  shearing  of  the  sheep  only,  and 
not  of  the  felony. 

Secondly,  with  respect  to  the  nature  and  office  of 
the  innuendo. 

An  innuendof  may  be  defined  to  be  an  averment 
which  explains  the  defendant's  meaning  by  reference 
to  antecedent  matter.     The  principal  and  important 


*  3  Buls.  83-     Helly  v.  Hcnder. 

t  2Salk.  513.     1  Ld-  Ray-  256-     12  Mod-  139.     1  Will.  Saun.  213. 


rule  of  law  relating  to  this  species  of  averment  is, 
that  its  office  is  merely  to  explain,  by  pointing  out 
the  defendant's  allusion,  and  that  it  can  in  no  case  be 
allowed  to  introduce  new  matter. (1)  And  the  rea- 
son for  this  is  a  most  substantial  one  ;  for  were  it 
otherwise,  questions  of  law  and  fact  would  frequent- 
ly be  confounded  together.  For  instance,  suppose 
the  defendant  had  said,  "  You  are  forsworn,"  which 
words  would  not  be  actionable,  unless  spoken*  with 
reference  to  a  judicial  oath,  if  the  plaintiff  averred 
by  way  of  innuendo,  and  without  reference  to  ante- 
cedent matter,  meaning  thereby  "that  he,  the  said 
plaintiff,  was  forsworn  in  a  court  of  record,"  or  mean- 
ing thereby  "that  he,  the  said  plaintiff,  was  per- 
jured ;"  the  averment  would  involve  a  question  of 
law,  and  the  jury  would  have  to  decide  upon  evi- 
dence, whether  the  forswearing  did  in  law  amount 
to  perjury,  and  the  question  would  not  be  open  to 
the  court  upon  the  record  ;  and  besides  this,  that 
clearness  and  precision  would  be  wanting  which  is 
essential  to  a  legal  and  technical  statement  of  the 
case. 

In  the  King  v.  Horne,t  De  Grey,  €.  J.  observed, 
"  In  the  case  of  a  libel,  which  does  not  in  itself  con- 
tain the  crime  without  some  extrinsic  aid,  it  is  ne- 
cessary that  ic  should  be  put  upon  the  record  by 
way  of  introduction,  if  it  is  new  matter,  or  by  way 
of  innuendo  if  it  is  only  matter  of  explanation.  For 
an  innuendo  means  no  more  than  the  words  "  id 
est"  "  scilicet"  or  "meaning,"  or  "  aforesaid,"  as  ex» 

*  Holt  v.  Scbolefield,  6  T-  R.  691.  f  2  Cowp.  683- 


(1)  Shaffer  v.  Kintzer,  1  Binn-  537-     Bornman  t.  Boyer,  3  Binn.  516. 


29o 

planatory  of  a  subject  matter  sufficiently  expressed 
before,  as  such  a  one,  meaning  the  defendant,  or 
such  a  subject,  meaning  the  subject  in  question." 

An  innuendo,  therefore,  cannot  extend  the  sense 
of  the  words  beyond  their  own  meaning,  unless 
something  is  put  upon  the  record  for  it  to  ex- 
plain. (1) 

As,  in  an  action  upon  the  case  against  a  man,  for 
saying  of  another,*  "  He  has  burnt  my  barn  ;"  the 
plaintiff  cannot  there,  by  way  of  innuendo,  say, 
meaning,  "  his  barn  full  of  corn,"  because  that  is 
not  an  explanation  of  what  was  said  before,  but  an 
addition  to  it. 

But  if,  in  the  introduction,  it  had  been  averred 
that  the  defendant  had  a  barn  full  of  corn,  and  that 
in  a  discourse  about  that  barn,  the  defendant  had 
spoken  the  words  charged  in  the  declaration  of  the 
plaintiff,  an  innuendo  of  its  being  the  barn  full  of 
corn  would  have  been  good ;  for,  by  coupling  the 
innuendo  in  the  libel  with  the  introductory  averment, 
"  his  barn  full  of  corn,"  it  would  have  made  the 
sense  complete. 

If  the  innuendo  materially  enlarge  the  sense  of 
the  words,  it  will  vitiate  the  declaration  even  after 
verdict. 

The  plaintiff,!  in  the  first  count  laid,  these 
words  as  spoken  by  the  defendant,  "  John  Holt 
(meaning  the  plaintiff)  has  forsworn  himself,  (mean- 

Barham's  case,  4  Co.  t  Holt  v-  Scholetteld,  G  T.  R.  691- 


(1)  WClurg  v.  Ross,  5  Binn.  218.  Van  Vechenx.  Hopkins,  5  Johns.  Rep 
220-  M'Glaughry  v.  Wetmore,  6  Johns.  Rep-  33.  Thomas  v.  CrosweU,  7  Johns 
Rejv  271.     See.  Smith  v.  Carey,  3  Camnh-  Rep.  4G1 


296 

mg  that  the  plaintiff  had  committed  wilful  and  cor- 
rupt perjury.)  After  a  general  verdict  for  the  plain- 
tiff with  entire  damages,  judgment  was  arrested,  on 
the  ground  that  the  words  in  the  first  count  were 
not  in  themselves  actionable,  and  that  the  count 
contained  no  colloquium  or  averment  of  the  words 
having  been  spoken  of  a  forswearing  in  a  court  of 
justice,  and  that  the  innuendo  could  not  extend  their 
meaning. 

In  the  case  of  the  King  v.  Alderton,*  the  alleged 
libel  was  contained  in  an  advertisement,  reciting  cer- 
tain orders  made  for  collecting  money,  on  account 
of  the  distemper  among  the  horned  cattle,  advertised 
by  the  clerk  of  the  peace  for  the  county  of  Suffolk  ; 
and  it  charged,  that  by  these  orders  the  money  col- 
lected had  been  improperly  applied.  The  informa- 
tion stated  this  to  be  a  libel  upon  the  Justices  of 
Suffolk.  In  the  body  of  the  libel  it  was  not  said, 
"  by  the  order  of  the  justices,"  nor  did  the  informa- 
tion in  the  introductory  part  say  that  it  was  a  libel  of 
and  concerning  the  Justices  of  Suffolk.  But  when 
the  information  came  to  state  any  of  the  orders  in 
the  advertisement,  it  added  this  innuendo,  "  mean- 
ing an  order  of  the  Justices  of  peace  for  the  county 
of  Suffolk  ;"  but  these  innuendos  could  not  supply 
the  want  of  an  averment  in  the  introductory  part,  of 
its  having  been  written  "  of  and  concerning  the 
Justices,"  because  they  were  not  explanatory  of,  but 
in  addition  to  the  former  matter.  And  the  court 
were  of  opinion  that  the  information  having  omitted 
the  words  "  of  and  concerning  the  justices"  in  the 

*  Say.  R.  280-     [See  what  is  said  of  the  Report  of  Rex  v.  Alderton  by  Saytr, 
1  Mau-  &SeIw-  169,  170-7 


297 

introductory  part,  such  omission  was  fatal,  and  judg- 
ment was  accordingly  arrested. (1) 

In  the  case  of  Hawkes  v.  Hawkey,*  before  re- 
ferred to,  it  was  decided  that  where  the  introductory 
matter  has  been  properly  stated,  it  is  necessary  to 
connect  the  whole  publication  with  it,  by  means  of 
a  general  averment  that  it  related  to  such  previous 
matter,  and  that  it  was  not  sufficient  to  do  it  by 
means  of  an  innuendo  only. 

Upon  motion  in  arrest  of  judgment,  Lord  Ellen 
borough,  C.  J.  was  of  opinion,  that  it  might  be  col- 
lected from  what  Lord  C.  J.  De  Grey  said  in  Bar- 
ham's  case,  j  that  he  conceived  an  introductory  aver- 
ment that  the  defendant  had  a  barn  full  of  corn,  and 
also  an  averment  that  the  defendant  spoke  the  words 
in  a  discourse  concerning  that  barn,  necessary  to 
warrant  the  innuendo  "  my  barn  full  of  corn."  His 
Lordship  added,  "If  a  broad  rule  has  been  laid 
down  as  to  the  mode  of  declaring,  in  this  species  of 
action,  whether  properly  laid  down  or  not,  in  the 
first  instance,  it  is  better  to  abide  by  it,  than  to 
attempt  making  nice  distinctions.  The  only  pecu- 
liarity in  this  case  which  is  relied  upon,  as  distinguish- 
ing it  from  the  current  of  authorities,  is,  the  pre- 
liminary matter  averred  respecting  the  fact  of  the 
plaintiff  having  put  in  his  answer  to  the  bill  filed  in 
the  exchequer;  and  the  question  is,  whether  the 
innuendo  alone  will  refer  the  words  spoken  to  such 
introductory  matter  so  as  to  make  it  necessary  for 
the  plaintiff  to  prove  any  thing  which  he  must  have 

*  8  East,  427.  t  4  Co- 


U)  The  Kins;  v.  Mavsdm,  4  Mau.  &  Seliv-  1  64 

38 


proved  had  a  colloquium  been   laid ;   the  case  of 
Savage  v.  Robery  seems  to  show  that  it  will  not." 

And  the  court,*  after  considering  the  case  of  the 
King  v.  Home,  gave  judgment  for  the  defendant. 

In  many  instances,  however,  an  innuendo  will 
not  vitiate  the  proceedings,  though  new  matter  be 
introduced. 

As,  where  the  matter  is  superfluous,  and  the 
cause  of  action  complete  without  it. 

The  plaintiff  alleged,!  that  the  defendant  ad- 
dressed these  words  to  him,  "  Thou  art  a  rogue  and 
a  rascal,  and  hast  killed  thy  wife  ;"  innuendo  one 
Elizabeth,  late  wife  of  the  plaintiff.  And  the  plain- 
tiff had  judgment,  though  the  declaration  contained 
no  prefatory  averment  that  the  wife  was  dead. 

In  Shalmer  v.  Forster  and  Wife, i  the  declaration 
stated  that  the  wife  of  the  defendant  spake  of  the 
foresaid  plaintiff  to  Ann  Rochester,  the  plaintiff's 
mother,  these  words  :  "Where  is  that  lying  thief, 
thy  son,  (innuendo  the  plaintiff,)  he  hath  murdered 
rny  aunt  (innuendo  one  Dorothy  Stoke,  the  defend- 
ant's aunt,)  and  I  will  prove  it."  After  verdict  for 
the  plaintiff,  though  a  motion  was  made  in  arrest  of 
judgment  upon  another  ground,  no  objection  was 
taken  to  the  innuendo  of  the  plaintiff's  aunt. 

So,  where  the  words  were  laid,§  "  Thou  hast 
robbed  the  church,"  (innuendo  the  church  of  St.  Al- 
phage,)  no  objection  was  taken. 

In  Craft  v.  Boite,||  the  words,  as  laid  in  the  decla- 
ration, were,  "  He  (meaning  the  plaintiff)  hath  stolen 


*  C'jwp-  0S0.  \\  ilner  v.  Hold,  Cro-  Car-  1^:> 

:  Cro.  Car-  496.  j    1  Cro-  I   153-     1  Vin-  At>.  512 

J  Will.  Satin-  243. 


two  ■hundred  pounds  worth  of  plate  out  of  Wadham 
College,"  (meaning  a  college  called  Wad  ham  Col- 
lege, in  the  university  of  Oxford,)  though  the  decla- 
ration contained  no  previous  averment  of  Wadham 
College,  in  the  university  of  Oxford.  It  is  suggested 
by  the  learned  editor  of  Saunder's  Reports,  that  the 
innuendo  is  on  such  account  improper ;  the  objec- 
tion, however,  appears  to  be  rather  of  form  than  of 
substance ;  and  probably  such  a  declaration  would 
be  held  good  on  general  demurrer  or  after  verdict, 
since  the  gist  of  the  action  is  the  charge  of  stealing 
from  Wadham  College,  which  is  entirely  unconnected 
with  the  situation  of  the  college  in  t|ie  universit}7  of 
Oxford,  so  that  the  innuendo  might  be  expunged 
without  affecting  the  cause  of  action. 

In  Roberts  v.  Cambden,*  the  defendant  said, 
il  He  (meaning  the  plaintiff)  is  under  a  charge  of  a 
prosecution  for  perjury.  G.  W.  had  the  attorne} - 
general's  directions  to  prosecute ;"  and  an  innuen- 
do that  the  attorney-general  for  the  county  pala- 
tine of  Chester  was  meant,  was  rejected  as  sur- 
plusage^ I) 

An  innuendo,  when  repugnant  or  insensible,  may 
be  rejected.! 

The  record  of  Nisi  Prius  stated,  that  the  said 
William  spoke  of  the  said  James  these  scandalous 
words  following :  "  He  (innuendo  the  said  William) 
is  a  thief,"  where  the  innuendo  should  have  been  of 
James.  After  a  verdict  for  the  plaintiff,  it  was  held 
that  he  was  entitled  to  his  judgment,  since  the  innu- 
endo was  void,  and  an  apparent  misprision. 

*  9  E.  83.  t  Cro.  Car.  512. 


(1)   Thomas  r.  Cromcell,  7  .Tolins.  Rep.  27L  ''  tea* 


•300 

it  does  not,  in  any  case,  seem  necessary  that  the 
innuendo  should  in  terms  state  the  legal  inference 
which  is  to  be  drawn  from  the  publication,  as  con- 
nected with  the  facts  stated  ;  its  office  seems  more 
properly  confined  to  mere  reference  of  the  defend- 
ant's meaning  to  previous  matter ;  and,  indeed,  such 
an  averment  would  be  improper,  since  the  action- 
able nature  of  the  charge  is  a  matter  of  law,  which 
the  court  will  collect  from  the  facts,  if  they  war- 
rant such  a  conclusion  ;  and  if  they  do  not,  no  in- 
nuendo of  their  legal  effect  will  avail  to  render  them 
actionable. 

Thus,  where,  from  the  circumstances,  it  appears 
upon  the  whole  that  the  defendant  intended  to  im- 
pute a  charge  of  wilful  murder,  it  is  unnecessary 
for  the  plaintiff  to  assert,  by  way  of  innuendo,  that 
the  defendant  meant  to  impute  the  very  crime  of 
murder. 

In  Peake  v.  Oldham,*  in  error,  the  plaintiffs  de- 
clared, that  upon  a  colloquium  concerning  the  death 
of  one  Daniel  Dolly,  the  defendant  said  to  the  plain- 
tiff, "  You  are  a  bad  man,  and  I  am  thoroughly  con- 
vinced that  you  are  guilty  (meaning  guilty  of  the 
death  of  the  said  Dolly,)  and  rather  than  that  you 
should  want  a  hangman,  I  will  hang  you." 

After  a  general  verdict  with  damages,  the  defend- 
ant brought  a  writ  of  error.  Judgment,  however, 
was  affirmed,  though  the  count  alluded  to  contained 
no  express  allegation,  by  way  of  innuendo  or  other- 
wise, that  the  defendant  intended  to  charge  the 
plaintiff,  with  the  crime  of  murder. 

\nd  though  in  the  above  case  special  damage  was 

-    1  Coup.  2::.. 


:K)1 

laid,  it  appears  that  the  court  held  the  words  to  be 
in  themselves  actionable  ;  and  Lord  Mansfield  ob- 
served, "  These  words  plainly  show  what  species  of 
death  the  defendant  meant,  and  therefore  manifestly 
in  themselves  import  a  charge  of  murder."  On  the 
contrary,  if  the  plaintiff  undertakes  to  explain  the 
import  of  the  words,  by  specifying  the  particular 
imputation  intended  by  the  defendant,  such  explana- 
tion will  not  vitiate  the  declaration,  provided  such 
an  intention  can  be  collected  from  the  circum- 
stances. Thus,  in  the  case  last  alluded  to,  where  a 
colloquium  was  laid  concerning  the  death  of  Daniel 
Dolly,  the  plaintiff,  in  his  fifth  count,  laid  the  words, 
"  You  are  guilty,"  (innuendo  of  the  murder  of  D. 
D.)  And  the  count  was  held  good  after  verdict, 
though  the  colloquium  was  of  the  death  only,  and 
the  innuendo  of  the  murder.* 

An  innuendo  in  one  count  may  be  supported  by 
a  colloquium  in  a  previous  one.  In  Tindall  v. 
Moore,f  the  words  laid  in  the  first  count  were, 
"That  rogue  Joe  Tindall  (meaning  the  plaintiff) 
set  the  house  on  fire,"  (meaning  the  summer-house 
that  was  burnt  in  the  occupation  of  one  Mr.  Cotton.) 
In  the  fifth  count  the  words  were,  "Joe  Tindall 
(meaning  the  plaintiff)  set  the  house  on  fire," 
(meaning  the  same  house.)  It  was  moved  in  arrest 
of  judgment,  that  the  words  in  the  last  count  were 
not  actionable,  for  that  every  count  in  a  declaration 
is  a  substantive  count,  and  that  the  innuendo  (mean- 
ing the  same  house)  could  not  relate  to  the  summer- 
house  mentioned  in  the  first  set  of  words.     But  by 

*  See  also  Woolnoth  v-  Meadow?,  5  East,  463,  and  Dame  Morrison  v.  Cade, 
Cro-  J-  162. 
+  2  Wife.  114. 


.502 

the  court,  although  the  last  set  of  words  be  not  ot 
themselves  actionable,  yet  theyjshall  have  relation 
to  the  former  set. 

From  these  decisions  it  appears,  that  both  the 
colloquium  and  innuendo  are  averments,  whose  of- 
fice it  is  to  connect  the  defendant's  publication  with 
the  prefatory  matter. 

That  the  first  is  a  general  averment,  connecting 
the  whole  of  the  publication  with  the  previous  state- 
ment ;  the  latter  a  subordinate  averment  connecting 
particular  parts  of  the  publication  with  what  has 
gone  before,  in  order  to  elucidate  the  defendant's 
meaning  more  fully. 

That  the  want  of  the  colloquium  cannot  be  sup- 
plied by  an  innuendo. 

That  the  office  of  the  innuendo  is  confined  to  a 
simple  explanation  of  the  defendant's  meaning  by 
reference  to  previous  matter.  That  when  it  exceeds 
such  limits  in  a  material  point,  it  will  vitiate  the  de- 
claration or  indictment ;  if  in  an  immaterial  one,  the 
fault  will  be  cured  by  verdict,  and  would  probably 
be  overlooked  on  a  general  demurrer. 

It  would  not  be  easy,  or  perhaps  possible,  to  point 
out  a  more  clear  and  convenient  process  for  techni- 
cally stating  a  case  upon  the  record  than  this,  which 
has  with  great  wisdom  been  adopted  by  the  law  from 
very  early  times ;  it  combines  simplicity  with  pre- 
cision, separating  the  law  from  the  fact,  and  exhibit- 
ing a  statement  of  the  cause  of  action  upon  the  face 
of  the  record,  plain  and  distinct  in  all  its  parts. 

It  is  true,  that  in  some  instances  justice  may  be 
defeated,  from  a  want  of  attention  to  the  maxims 
which  regulate  this  technical  kind  of  statement; 


but  it  is  equally  true  that  this  cannot  happen  without 
a  faulty  inattention  to  a  few  very  plain  and  rational 
rules  ;  that  the  failure  might  have  been  prevented 
by  the  exertion  of  a  little  prudence,  aided  by  a 
very  small  stock  of  legal  knowledge  ;  and  that,  on 
the  other  hand,  the  general  advantages  in  point  of 
perspicuity  and  legal  precision,  which  result  from 
an  adherence  to  these  prescriptions,  are  too  great 
to  be  placed  in  competition  with  any  individual  in- 
convenience arising  from  an  ignorance  or  miscon- 
ception of  them. 


.CHAPTER  XX. 


Of  Averments  in  General. 

In  what  cases  it  may  be  necessary  to  state  prefa- 
tory circumstances,  to  be  afterward  connected  with 
the  publication  by  means  of  a  colloquium  and  innu- 
endos,  is  of  course  a  matter  in  which  the  pleader 
must  exercise  his  discretion  in  the  particular  in- 
stance before  him ;  the  only  general  rule  that  can 
be  laid  down  is,  that  such  circumstances  must  be  in- 
troduced upon  the  record,  as  will  enable  the  court 
to  decide  upon  the  actionable  quality  of  the  publi- 
cation, and  the  jury  to  find  the  facts  which  are  con- 
nected with  it. 

Where,  from  the  ambiguity  of  the  terms  in  which 
a  libel  is  expressed,  it  is  doubtful  who  was  meant, 
it  is  the  proper  office  of  the  innuendo  to  render  the 
allusion  clear  ;  as,  where  but  one  or  two  letters  of 
the  name  are  expressed,*  or  the  plaintiff  is  libelled 
under  a  fictitious  or  borrowed  name,  or  where  the 
libel  is  couched  under  a  fable  or  allegory,  whose 
tendency  and  meaning  it  is  necessary  to  explain  with 
precision. (1)    Thus,  in  the  case  of  Sir  Miles  Fleet- 

*  Haw.  P.  C  c.  73-  !■  5- 


(1)  See  3  Rinn.  517. 


305 

tocod  v.  Curl,*  the  plaintiff  was  receiver  of  the 
court  of  wards,  and  the  words  were  laid  in  the  de- 
claration, with  an  innuendo,  as  follows  :  "  Mr.  De- 
ceiver (meaning  the  plaintiff)  hath  deceived  the 
king."  It  was  assigned  for  error,  that  the  innuendo 
could  not  be  supported,  but  the  court  held  that  it 
was  well  applied. 

So,  in  an  information  against  Clerk, f  for  pub- 
lishing a  libel  in  "  Mist's  Journal,"  it  was  shown 
by  proper  averments  and  inauendos,  that  in  a  pre- 
tended piece  of  Persian  history  the  king  and  se- 
veral other  members  of  the  royal  family  had  been 
libelled,  and  that  the  king  was  represented  under, 
the  name  of  Merewits,  the  Queen  under  that  of 
Sultana,  and  that  the  character  of  the  young  Sophi 
was  intended  for  the  Pretender. 

In  Baxter's  case,!  it  was  shown  that  by  the 
word  Bishops,  the  Bishops  of  England§  were  meant. 
In  the  King  v.  Franklin,  that  by  "  ministers," 
were  meant  the  ministers  of  the  King  of  England.  |] 

In  an  action  for  charging  the  plaintiff  with  hav- 
ing said  that  he  could  see  no  probability  of  the 
war's  ending  with  France  until  the  little  gentleman 
on  the  other  side  of  the  water  (innuendo  the  Prince 
of  Wales)  was  restored  to  his  rights.  The  court 
held,  that  this  was  certain  enough  even  without  an 
innuendo. 

In  Tucthin's  case,^  the  introductory  part  of  the 
information  stated,  that  the  libel  was  written  con- 
cerning the  royal  navy  of  this  kingdom,  and  the 
government  of  the  said  navy.    One  part  of  the  libel 

*  Cro.  J.  557.     2  Rolls  Rep.  148- 

t  Barnard,  K.  B-  304.     Dig.  L.  L.  24-  I  3  Mod.  69. 

s  4Bac.  Ab.  454.         ||  11  Mod.  99.         IT  5  St.  T.  590.     3  Ann-  1704. 

39 


-300 

was,  "  The  mismanagements  of  the  navy  (innuendo 
the  royal  navy  of  this  kingdom)  have  been  a  greater 
tax  upon  the  merchants  than  the  duties  raised  by 
parliament."  And  it  was  held,  that  "the  navy" 
was  well  connected,  by  means  of  the  innuendo, 
with  the  royal  navy  mentioned  in  the  introductory 
part. 

In  the  King  v.  Mathews,*  the  information 
m  the  introductory  part  charged  the  libel  to  have 
been  written  "  Of  and  concerning  the  Pretender, 
and!  concerning  his  right  to  the  crown  of  Great. 
Britain." 

The  words  of  the  libel  were,  "From the  solem- 
nity of  the  Chevalier's  birth,  and  if  hereditary  right 
be  any  recommendation,  he  has  that  to  plead  in  his 
favour."  And  it  was  held,  that  the  innuendos  in 
the  body  of  the  libel,  explaining  the  words  to  mean 
the  Pretender,  and  his  hereditary  right  to  the 
crown  of  Great  Britain,  were,  when  connected  with 
the  previous  averments,  sufficient  to  verify  the 
charge. 

In  the  King  v.  Horne,f  the  libel,  as  stated  in 
the  information,  was  averred  to  be  of  and  concern- 
ing his  said  Majesty's  government,  and  the  em- 
ployment of  his  troops.  The  libel,  as  set  forth  in  the 
information,  advertised  a  subscription  for  "  the  relief 
of  the  widows,  orphans,  and  aged  parents  of  our  be- 
loved American  fellow-subjects,  who,  faithful  to 
the  character  of  Englishmen,  and  preferring  death 
to  slavery,  were,  for  that  reason  only,  inhumanly 
murdered  by  the  King's  (meaning  his  said  Majes- 
ty's) troops   at  or  near  Lexington  and  Concord, 

Sf  St.  T.  R.  682  t  Cowp.  682- 


so? 

&,e.  iii  the  province  of  Massachusets."  The  de- 
fendant having  been  found  guilty,  objected,  in  ar- 
rest of  judgment,  that  there  was  no  averment  as  to 
the  state  of  the  Massachusetts  colony  at  that  time, 
or  that  the  King  had  sent  any  troops  there,  or  that 
the  employment  of  the  troops  was  by  the  King's 
authority. 

Lord  C.  J.  De  Grey,  in  giving  judgment,  ob- 
served, "  The  words  in  the  present  case  are,  that 
the  defendant,  of  and  concerning  the  king's  go- 
vernment and  the  employment  of  his  troops,  said., 
'  that  innocent  subjects  had  been  inhumanly  mur- 
dered by  the  king's  troops,  for  preferring  death  to 
slavery.'  Do  these  words  import,  in  their  natu- 
ral  and  obvious  sense,  that  the  king's  troops  were 
employed  by  the  act  of  government  inhumanly  to 
murder  the  king's  innocent  subjects  ?  There  can 
be  no  doubt  but  that  the  king's  government  com- 
prehends all  the  executive  power  both  civil  and 
military,  that  he  employs  all  the  national  force,  and 
that  his  troops  are  the  instruments  with  which  part 
of  the  executive  government  is  to  be  carried  on. 
The  introductory  part  of  this  information  charges 
that  the  subject  of  the  writing  in  the  present  case 
was,  'the  troops  and  the  king's  troops,  and  the 
business  they  had  done.' 

M  It  has  been  truly  said,  that  the  king's  troops 
may,  like  other  men,  act  as  individuals,  but  they 
can  be  employed  as  troopsby  the  act  of  government 
only.  If  the  averment,  therefore,  amount  to  this, 
that  in  the  discourse  which  was  held,  the  words 
were  said  «  of  and  concerning  the  king's  govern- 
ment,' the  natural  import  appears  to  us  to  be  this  : 


•  I  am  speaking  of  the  king's  administration  of  his 
government  relative  to  his  troops,  and  I  say  that 
our  fellow-subjects,  faithful  to  the  character  of 
Englishmen,  and  preferring  death  to  slavery,  were, 
tor  that  reason  only,  inhumanly  murdered  by  the 
kino's  order,  or  the  orders  of  his  officers.'  The 
motive  imputed  tends  to  aggravate  the  inhumanity 
of  the  act,  and  consequently  of  the  imputation 
itself,  because  it  arraigns  the  government  of  a  breach 
of  public  trust,  in  employing  the  means  of  the  de- 
fence of  the  subject  in  the  destruction  of  the  lives 
of  those  who  are  taithtul  and  innocent. 

"  As  to  any  other  circumstances  not  stated  in 
the  information,  if  those  which  are  stated,  do  of 
themselves  constitute  an  offence,  the  rest  supposed 
by  the  defendant,  whether  true  or  false,  would 
have  been  only  matter  of  aggravation,  and  not  any 
ingredient  essential  to  the  constitution  of  the  crime, 
and  therefore  not  necessary  to  be  averred  on  the  re- 
cord. 

With  respect  to  words  published  in  a  foreign  lan- 
guage, and  phrases  or  terms  whose  use  is  confined 
to  a  particular  district  or  class  of  people,  and  not  ge- 
nerally understood,  it  has,  as  already  observed,  been 
said,  that  no  averment  as  to  their  meaning  is  neces- 
sary.* This  doctrine  seems  nevertheless  a  little  ex- 
traordinary, since,  without  such  an  explanation,  the 
question  of  law  does  not  appear  open  upon  the  re- 
cord.f  Suppose,  for  instance,  an  action  brought 
for  calling  the  plaintiff  Idoncr,\  without  any  aver- 
ment of  the  meaning  of  the  term,  and  that  the  de- 


•   See  1  Will.  Saund.  n.  242. 

[  Hob.  126.     1  Roll.  Ab.  86.     Zenobio  v.  Axtell,  6  T.  R.  162. 

%  In  Welch  signifying;  perjured. 


309 

Jendant  demurred  ;  since  an  acquaintance  with  the 
Welch  tongue  forms  no  part  of  legal  education  or 
practice,  the  judges  might  be  placed  in  a  strange 
situation  if  bound  to  give  their  judgment  upon  the 
legal  meaning  of  the  words  ;  but  an  avermenl  as  to 
the  meaning,  would  preclude  all  doubt,  .since  by  his 
demurrer,  the  defendant  would  allow  that  the  mean- 
ing of  the  word  was  perjured  or  forsworn,  as  alleged 
in  the  declaration,  and  judgment  would  be  given  ac- 
cordingly. 

If  the  plaintiff  undertake  to  translate,  and  render 
a  foreign  word  of  an  actionable  sense,  by  an  English 
one  whose  meaning  is  not  actionable,  the  declaration 
will  be  defective.* 

In  the  case  of  Ross  v.  Lawrence,  the  plaintiff 
averred  that  the  word  Idoner  in  Welch  signified  for- 
sworn, though  in  fact  it  meant  perjured  ;  and  after  a 
verdict  for  the  plaintiff,  judgment  was  arrested. 

After  these  observations  upon  the  general  nature 
of  these  averments,  it  may  be  proper  to  subjoin  a 
lew  remarks  upon  their  application  to  the  different 
classes  of  actionable  words  which  have  been  above 
enumerated. 

It  has  been  observed,  that  it  is  in  no  case  neces- 
sary to  introduce  upon  the  record  any  collateral  cir- 
cumstance, connected  with  the  imputation,  which  is 
assumed  by  the  defendant's  words.  Thus,  in  de- 
claring for  the  words,  "  I  will  call  him  in  question 
for  poisoning  my  aunt,"  there  needs  no  averment 
that  the  aunt  was  poisoned. f 

Formerly,  indeed,  a  very  considerable  degree  of 
precision  was  required  in  pleading,  when  the  words 
imputing  the  commission  of  a  crime  related  to  any 

*  Sty.  236.     Ross  v.  Lawrence.  t  Cro.  F.liz.  569.  823, 


extrinsic  facts.  Thus,  in  declaring  ior  the  words, 
"  Whosoever  he  is,  that  is  the  falsest  thief  and  the 
strongest  in  the  county  of  Salop,  whatsoever  he  hath 
stolen,  or  whatsoever  he  hath  done,*  Thomas  Hasel- 
wood  is  falser  than  he,"  it  was  held  necessary  to  aver 
that  there  were  felons  in  the  county  of  Salop.  But 
this  resolution  is  to  be  attributed  to  the  anxiety  of 
the  courts  to  discourage  such  actions  ;  it  seems 
pretty  clear  that  at  the  present  day  no  such  aver- 
ment would  be  deemed  necessary. 

It  would  be  sufficient  to  aver  that  the  defendant, 
intending  to  charge  the  plaintiff  with  felony,  spoke 
the  words  ;  and  in  setting  them  out,  to  add  an  in- 
nuendo to  the  same  effect,  in  which  case  a  verdict 
for  the  plaintiff  would  be  conclusive  as  to  the  de- 
fendant's meaning  and  intention. 

The  introduction  of  useless  averments  is  in  all 
cases  objectionable,  inasmuch  as  it  encumbers  the 
plaintiff's  case  upon  the  trial  with  unnecessary 
proof,  and  in  some  instances  the  superfluity  may 
prove  fatal  to  the  declaration. 

In  the  case  of  Snag  v.  Gee,f  where  it  appeared 
upon  the  record  that  the  person,  with  whose  mur- 
der the  plaintiff  had  been  charged  by  the  defendant, 
was  still  alive ;  it  was  held  that  no  action  was  main- 
tainable. 

So,  in  cases  where  a  felony  is  charged,  it  is  unne- 
cessary to  make  any  averment  introducing  any  cir- 
cumstances relating  to  a  felony  actually  committed  ; 
so,  with  respect  to  imputations  of  forgery  or  perjury, 
where  the  meaning  can  be  collected  from  the  de- 
fendant's own  words,  no  averment  ought  to  be  made 

*  Shepp.  Ac.  269.  t  4  Rep.  16.     1  Vin.  Ab.  409.  pi.  4. 


311 

as  to  the  existence  of  any  circumstance  to  whicii 
the  defendant  might  by  possibility  allude,  since  it 
has  been  long  settled  that  their  existence  is  perfectly 
immaterial  to  the  maintenance  of  the  action.* 

But  in  case  qf  a  charge  of  forswearing,  unless 
from  the  accompanying  words,  it  is  clear  that  a  judi- 
cial forswearing  was  meant,  the  plaintiff  must  show 
upon  the  record  that  the  defendant  alluded  to  some 
particular  forswearing  which  amounted  to  perjury. 
Thus,  in  a  declaration  for  saying,  "  A.  B.f  being  for- 
sworn, compounded  the  prosecution."   No  introduc- 
tion of  extrinsic  facts  is  necessary,  since  an  indicta- 
ble forswearing  must  have  been  meant ;  but  in  de- 
claring for  the  words,;  "  He  has  forsworn  himself  in 
Leake  Court,"  it  is  necessary  to  show  that  Leake 
Court  was  one  in  which  the  offence  of  perjury  could 
liave  been  committed. 

Where,  from  the  context,  the  import  of  the  words 
is  doubtful,  it  is  advisable  to  insert  those  only 
which  certainly  are  actionable,  in  order  to  avoid  all 
doubt  upon  the  record,  which  may  be  taken  advan- 
tage of  by  demurrer,  or  by  motion  in  arrest  of  judg- 
ment, or  by  writ  of  error. 

Thus,  in  an  action  brought  for  the  words,  §  "  Mr. 
Brittridge  is  a  perjured  old  knave,  and  that  is  to  be 
proved  by  a  stake  parting  the  land  of  H.  Martin 
and  Mr.  Wright."  After  a  verdict  for  the  plaintiff, 
the  defendant  succeeded  on  a  motion  for  arresting 
the  judgment ;  for  though  it  was  held  by  the  court 
that  the  words  in  italics  were  actionable,  they  were 
of  opinion  that  their  force  was  explained  away  by 

*  Via.  supra,  85.  t  Cro.  EHz.  609. 

"  1  Roll.  Ab.  39.  pi.  7.     6  Bac  Ab.  207.  *  4  Co.  18- 


S12 

the  latter,  which  showed  that  no  judicial  perjury 
was  mentioned  ;  so  that  had  the  latter  words  been 
admitted,  the  plaintiff  would  have  retained  his  ver- 
dict. 

In  the  description  of  the  special  character  in 
which  the  plaintiff  sues,  some  nicety  is  to  be  ob- 
served, in  not  averring  more  than  is  necessary  ;  for 
since  the  averment  of  character  is  material,  the 
plaintiff  upon  the  trial  will  be  bound  to  prove  it, 
with  all  the  circumstances  with  which  the  description 
in  the  declaration  is  encumbered,  though  a  much 
more  simple  one  might  have  sufficed.(l) 

In  an  action  for  words,  the  plaintiff*  declared  that 
he  was  in  medecinis  doctor ;  and  it  was  moved  in 
arrest  of  judgment,  because  he  did  not  show  that 
he  was  licensed  by  the  College  of  Physicians,  or 
that  he  was  a  graduate  of  one  of  the  universities 
according  to  the  statute. f  But  Bankes,  C.  J.  and 
Crawley,  J.  were  of  opinion  that  the  act  was  a  ge- 
neral one,  which  need  not  be  pleaded. 

And  even  had  the  statute  been  a  private  one,  it 
seems  that  the  plaintiff  in  such  an  action  would  not 
be  bound  to  set  out  his  title,  since,  in  general,  in 
an  action  on  the  case  against  a  wrong  doer  for  a  dis- 
turbance, it  is  sufficient  for  the  plaintiff  to  allege 
his  right  {habere  debet)  generally,  without  showing 
a  titled 

*  Dr.  Brownloiv's  case,  Mar.  116.  pi.  3.     1  Vin.  Ab.  539. 
•     t  14  H.  8.  c.  5. 

J  2  Vent.  292.     Cro.  J.  43.  123.     Com.  Dig.  Pleader,  c.  39. 


1)  See;?o.sf,  note  [22.1 


;H3 

And  in  an  action  brought  by  a  physician,  it  is 
sufficient  to  aver*  that  he  had  used  and  exercised 
the  profession  of  a  physician  ;  but  if  he  were  to 
aver  that  he  was  a  physician,  and  had  duly  taken  the 
degree  of  doctor  of  physic,  he  would  at  all  events 
be  required  to  prove  his  degree  as  stated  ;f  and  if 
he  were  unable  to  prove  it,  he  would  fail. 

But  though  the  plaintiff  need  not  aver  how  he 
came  by  his  title,  he  must  describe  it  in  apt  terms. 
Thus,  in  an  action  brought  by  a  barrister,  he  ought 
to  aver  that  he  is  homo  conciliarius ;  and  it  is  not 
sufficient  to  say  that  he  is  eruditus  in  lege 4 

It  was  formerly  held,  that  it  was  necessary  for  a 
tradesman§  to  aver  in  an  action  for  words  of  his  oc- 
cupation or  trade,  that  he  got  his  living  by  buying 
and  selling ;  but  this  arose  from  the  idea,  that  the 
words,  to  be  actionable,  must  import  bankruptcy, 
and  must  be  applied  to  a  person  who  was  liable  to 
the  statutes  of  bankruptcy,  and  has  long  been  ex- 
ploded :||  it  is  sufficient  to  aver  that  the  plaintiff  ex- 
ercised the  trade,  and  derived  profit  from  it. 

Next,  it  should  appear  that  the  special  character 
belonged  to  the  plaintiff  at  the  time  of  the  publica- 
tion. So  little  precision  has  been  required  as  to  this 
statement,  that  it  has  been  held  that  the  averment 
by  the  plaintiff,  that  he  is  of  such  a  trade,  or  has 
exercised  it  for  divers  years,  H  without  saying  ultimo 
et  jam  elapsos,  or  that  he  is  a  freeman,  exercising 
the  art  or  mystery  ot  a  linen  draper  for  the  space 

*8T.R.  305.  t  8  T.  303.     1  N.  R.  196.     2  Buls.  230. 

f  1  Vin.  Ab.  539-  pi.  2. 

§  Sid.  299.     1  Vin.  Ab.  539.    According  to  Coke,  C.  J.  the  technical  de 
scription  is  homo  conciliarius  et  injure  peritus' 
'I  Vide  supra,  134, 135.  1T  Tuthill  v.  Milton,  Yel.  159. 

40 


of  live  3  ears  past,  or  that  he  has  been  an  attorney 
for  divers  years  now  elapsed,  was  sufficient,  with- 
out an  express  averment  that  he  was  such  at  the 
time  the  words  were  spoken,  since  it  is  not  to  be 
presumed  that  a  man  alters  his  trade  or  profession. 

In  the  case  of  Dodd  v.  Robinson,!  the  plaintiff 
declared  that  he  was  inducted  into  a  parsonage  in 
Ireland,  and  executed  the  office  of  pastor  for  four 
years  after.  It  was  moved  in  arrest  of  judgment, 
that  he  did  not  aver  that  he  was  a  parson  at  the  time 
of  speaking  the  words. 

But  the  court  said,  it  should  be  intended  that  he 
continued  parson,  because  he  had  a  freehold  in  the 
parsonage  during  his  life. 

In  the  case  of  Tuthill  v.  Milton,  t  the  court  said, 
that  in  an  action  for  words  which  affect  the  plaintiff 
in  his  office  which  he  holds  during  pleasure,  it  must 
be  expressly  averred  that  he  was  in  the  office  at  the 
time  the  words  were  published  ;  but  that  if  the 
words  relate  to  his  profession  or  trade,  it  is  sufficient 
to  aver  that  he  has  for  some  3rears  past  exercised  the 
profession  or  trade,  for  that  it  shall  not  be  intended 
that  he  has  discontinued  such  profession  or  trade. 

But  in  the  subsequent  case  of  Collins  v.  Malin,§ 
where  the  plaintiff  declared  that  he  had,  for  a  great 
while,  used  the  trade  of  buying  and  selling  cattle, 
and  that  the  defendant  said  of  him,  "  Thou  art  a 
bankrupt."  After  verdict  for  the  plaintiff,  judgment 
was  arrested. 


*  2  Roll.  It.  84.    1  Vin.  Ab.  533. 

I   All.  63,  64.     1  Vin.  Ab.  538.   note  to  pi.  3. 

Cro.  Jac.  222.     Yelverton,  150. 
>  Cro.  Car.  282.     Ser  also  2  Roll  S-1.     Dan    L70 


31.3 

After  verdict,  indeed,  if  the  continuance  can 
be  collected  from  any  averment  or  circumstances, 
the  want  of  a  precise  and  technical  allegation  will 
be  cured. 

As,  where  the  plaintiff,  after  alleging  that  he 
was  a  justice*  of  the  peace  for  the  county  of  Lei- 
cester, for  divers  years,  averred  that  the  defendant 
spake  these  words  of  him,  being  a  justice  of  the 
peace. 

So  the  continuance  may  be  collected  from  the 
words  themselves  ;  as  if  the  defendant  say  of  an 
attorney,  that  "  he  plays  with  both  hands."! 

In  the  proceeding  by  writ  of  scandalum  mag- 
natum,  the  plaintiff  declares  tarn  pro  domino  rege 
quam  pro  seipso,i  though  he  is  entitled  to  the  whole 
of  the  damages  recovered. 

It  has  been  held,§  that  the  statute  2  R.  2.  st.  1. 
c.  5,  is  a  general  law,  and  that  the  plaintiff  need 
not  recite  it  in  his  declaration;  but  that  if  he  under- 
take to  recite  it  and  vary  from  it  in  any  material 
point,  the  declaration  will  be  bad. 

*  Sir  Thomas  Beaumond  v.  Sir  Henry  Hastings,  Cro.  J.  240. 
t  2  Roll.  85.  X  6  Bac.  Ab.  100.     1  P.  Will-  G!)0- 

*  4  Co.  12.  b.    Cro.  Car.  136-     Com.  Dig".  Pefam.  B.  3- 


CHAPTER  XXI. 


Averment  of  Malice. 

Since  a  malicious  intention  to  injure  the  plain- 
tiff forms  an  essential  ingredient  in  this  species  of 
action,  it  seems  necessary  to  introduce  into  every 
declaration'  an  averment  of  the  defendant's  malice. 

No  precise  and  prescribed  form  of  words  is  re- 
quisite for  this  purpose,  though  the  epithet  mali- 
cious, as  applied  to  the  matter  published,  and  the 
word  maliciously,  to  the  act  of  publishing,  are  the 
most  usual  and  appropriate  terms. 

Any  form  of  words  will  suffice,  from  which  a 
malicious  intention  can  be  inferred  ;  thus  it  has 
been  held  sufficient  to  aver,  that  the  defendant 
spoke  the  words,  or  published  the  libel  falsely  or 
wrongfully,*  or  that  the  defendant,  machinans  pe- 
jorare  dixit. j 

And  Holt,  C.  J4  was  of  opinion,  that  in  a  de- 
claration it  is  not  necessary  to  use  either  the  word 
falsely  or  maliciously,  though  it  is  otherwise  in  case 
of  an  indictment  or  information.  But  it  is  suggest- 
ed by  Mr.  Sergeant  Williams,  in  his  notes  on  Saun- 
ders^ that  this  must  be  taken  to  mean  that  the 
omission  would  not  be  fatal  after  verdict. 

*  Moor,  459.  Ow.  51.  Noy,  35. 

1  Danv-  166.  Com.  Dig.  tit.  Defam.  G.  5.  Sty.  392. 

5  2  Will.  Sau.  212. 


317 

But  such  words,  it  seems,  are  essential  in  indict- 
ments and  informations.* 

It  has  been  the  fashion  with  pleaders,  both  an- 
cient and  modern,  to  deal  so  profusely  in  the  evil 
motives  and  intentions  attributable  to  the  defend- 
ant, that  few  cases  are  to  be  met  with  where  any 
objection  has  been  taken,  for  want  of  an  averment 
of  this  nature. 

It  does  not  appear  to  be  necessaryf  for  the  plain- 
tiff to  make  any  averment  by  way  of  exculpation, 
since  it  is  incumbent  on  the  defendant,  in  case  he 
mean  to  rely  on  the  justice  of  the  charge  in  his 
defence,  to  plead  the  justification  specially,  and  he 
cannot  give  it  in  evidence  under  the  general  issue. 

And  perhaps  the  averment  of  innocence,  on  the 
part  of  the  plaintiff,  of  the  charge  cast  upon  him, 
or  of  the  falsity  of  the  defendant's  publication, 
would  be  considered  as  unnecessary,  on  account  of 
the  general  presumption  which  the  law  entertains 
of  a  man's  innocence  till  the  contrary  be  made  to 
appear.  Formerly,  however,  it  was  held  incum- 
bent upon  the  plaintiff  not  only  to  aver  the  fal- 
sity of  the  charge  in  general  terms,  but  also  to  ne- 
gative particular  facts  contained  in  the  publication 
complained  of;  for  instance,  where  the  slander  was 
published  as  heard  from  another, X  it  was  held  ne- 
cessary to  aver  that  the  defendant  had  not  heard  it. 

In  Hooker  v.  Tucker,§  it  was  held  by  Holt, 
C  J.  that  in  a  declaration  for  these  words  of  a 
trader,  "  He  is  a  pitiful  fellow,  and  not  able  to  pay 
his  debts."     There   needed  no   averment  that  he 


*  Sty.  392.     Per  Roll,  C  J.     1  Vin.  Ab.  533.  pi.  3.  t  2  Wils.  147. 

+  Morrison's  case,  Sheppard,  Ac.  267.  §  Holt,  R.  S9. 


318 

was  no  pitiful  fellow,  and  that  he  was  able  to  pay  his 
debts. 

So,  in  Bendish  v.  Lindsey,*  where  the  action 
was  brought  for  charging  the  plaintiff  with  bribery 
at  an  election,  the  defendant,  holding  up  some  gui- 
neas in  his  hand,  said  of  the  plaintiff,  who  was  a 
candidate,  "These  guineas  are  Mr.  Bendish's  mo- 
ney, and  were  given  me  to  vote  for  him ;  he  has 
bought  my  vote,  and  he  shall  have  it."  It  was  ob- 
jected in  arrest  of  judgment,  after  verdict  for  the 
plaintiff,  that  it  was  not  averred  throughout  the 
whole  pleading,  that  the  plaintiff  did  not  give  the 
money.  But  Holt,  C.  J.  said,  it  need  not  be  aver- 
red that  the  plaintiff  did  not  give  the  money,  for  it 
is  said,  hcec  falsa Jicta  malitiosa  verba,  which  is  well 
enough. 

The  falsity  of  the  charge  may  be  implied  from  the 
averment  that  it  was  made  ex  malitza,  since  the  term, 
in  its  legal  sense,  imports  a  publication  without  legal 

excuse.! 

Where  a  party  repeats  the  slander  of  another, 
knowing  it  to  be  false,  and  that  the  author  has  re- 
tracted his  assertion  or  opinion,  it  seems  an  action 
is  maintainable  against  the  reporter,  though,  at  the 
time  of  publication,  he  announced  the  name  of  the 
person  from  whom  he  heard  it ;  but  in  such  case,  it 
would  be  necessary  to  aver  the  defendant's  know- 
ledge, in  the  declaration  ;  for,  if  the  fact  or  circum- 
stance were  not  to  be  averred  in  the  declaration, 
and  the  defendant  pleaded  that  he  gave  the  plaintiff 
a  cause  of  action  by  naming  his  author,  the  plaintiff 
might  be  considered  as  precluded  from  replying 
that  the  defendant  maliciously  published  the  slander 

*   !1  Mod.  104.         +  Sutton  v.  Johnstone,  1  T.  R.  40°.     Cro.  Car.  271. 


against  his  own  knowledge  and  conviction ;  tor  it 
he  could  reply  it,  issue  must  necessarily  be  joined 
upon  the  fact  of  knowledge,  which  has  been  held 
not  traversable. 

Thus,  in  the  case  of  Sir  G.  Gerrard  v.  Dicken- 
son,* the  action  was  brought  for  publishing  a  lease, 
knowing  it  to  be  counterfeit,  and  thereby  hindering 
the  plaintiff  from  letting  his  land  ;  the   defendant 
pleaded,  that  she  found  the  lease,  and  traversed  her 
knowledge  of  the  forgery  ;  and  the  plea  was  held  in- 
sufficient, because  the  knowledge  of  the  forgery  is  not 
traversable,  any  more  than  the  sciens  in  an  action 
on  the  case,  where  the  defendant's  dog  has  bitten 
the  plaintiffs  cattle,  and  where  the   plaintiff  avers 
that  the  defendant  knew  that  the  dog  was  accus- 
tomed to  bite  sheep.     The  objection  to  traversing 
the  scienter  assigned  is,  that  it  is  no  direct  allegation, 
nor  ever  alleged  in  any  place,  and  therefore  cannot 
be  tried. f     This  objection  on  the  score  of  locality 
ceased  indeed,  when  it  was  no  longer  required  that 
the  venire  should  be  awarded  from  the  vicinage  ; 
and  there  seems  to  be  no  very  satisfactory  reason 
why  a  party  in  pleading  should  not  confine  the  evi- 
dence by  traversing  any  distinct  circumstance  which 
is  essential  to  his  adversary's  case,  and  which  must 
be   proved  upon  the  trial.       Since,  however,  the 
technical  objection  to  traversing  the  scienter  has 
not  been  judicially  defeated,  it  would  not  be  proper 
to  omit  the  averment  of  knowledge  in  the  declara- 
tion, in  a  case  where  it  is  material ;  as,  where  a  party- 
has  repeated  slander,  knowing  the  author  to  have 
been  convinced  of  his  error,  or  sets  up  a  lease  which 

•   A  Krr.  18.  f  A  Rep.  18. 


320 

he  knows  to  be  a  forgery,  for  the  purpose  of  injuring 
the  plaintiff. 

Where  particular  circumstances  have  been  intro- 
duced to  show  the  defendant's  conduct  to  have  been 
malicious,  it  will  be  necessary  to  prove  them  upon 
the  defendant's  pleading  the  general  issue.* 

*  2  East,  437, 


CHAPTER  XXTT. 


Of  Damage. 

The  defendant's  wrongful  act  having  been  con- 
sidered, the  next  question  is,  as  to  the  statement  of 
the  loss  to  the  plaintiff  resulting  from  it. 

Where  the  words  are  intrinsically  actionable,  the 
loss  to  the  plaintiff  is,  as  lias  been  seen,  a  mere  in- 
ference and  presumption  of  law  ;  and  it  does  not 
seem  necessary  for  the  plaintiff  to  aver  that  the 
words  complained  of  amount  to  the  charging  a 
precise  crime ;  since  their  actionable  quality  is  a 
question  of  law,  and  not  of  fact,  and  will  be  col- 
lected by  the  court  from  the  circumstances,  if  they 
warrant  it.*  But  in  such  case,  it  may  frequently 
be  adviseable  to  aver  special  damage  to  have  been 
sustained  in  consequence  of  the  words  ;  such  an 
averment  will  not  prejudice,  since  it  will  not  be 
necessary  to  prove  it  on  the  trial.  If  no  such  proof 
be  then  given,  and  the  jury  give  a  general  verdict, 
the  defendant,  if  it  should  be  necessary  afterward 
in  order  to  enable  him  to  move  in  arrest  of  judg- 
ment, may  have  the  verdict  amended  by  confining; 
itf  to  the  actionable  words  according  to  the  judge's 
notes. 

*  See  Peake  v.  Oldham,  Cowp.  Rep.  275. 

+  This  is  done  at  Chambers,  a?  of  course,  without  a  motion  in  eourt 

41 


Formerly  it  was  held*  that,  where  the  words  were 
not  actionable,  but  the  special  damage  was  the  gist 
of  the  proceeding,  such  special  damage  might  be 
given  in  evidence,  although  the  particular  instances 
of  the  special  damage  were  not  stated  in  the  decla- 
ration ;  but  that,  when  the  words  themselves  were 
actionable,  particular  instances  of  such  damage  could 
not  be  given  in  evidence,  unless  specified  on  the 
record. 

But  modern  practice!  does  not  warrant  this  dis- 
tinction, and  at  the  present  day  it  seems  that  in 
both  cases  the  particular  damage  must  be  speci- 
fied.^) 

The  general  rule  of  pleading,  as  to  special  da- 
mage, is,  that  it  must  be  averred  with  that  degree 
of  certainty  and  particularity  which  the  case  admits 
of,  in  order  that  the  defendant  may  be  apprized  what 
it  is  he  comes  to  answer,  though  in  some  cases  where 
particularity  would  be  productive  of  inconvenience, 
and  the  circumstances  are  not  immediately  within 
the  knowledge  of  the  party,  a  more  general  state- 
ment has  been  deemed  sufficient. 

Thus  the  averring  generally,  that  by  means  of 
the  publication,  several  customers  (not  naming  them) 
left  the  plaintiffs  house,  is  not  sufficiently  precise.^ 

And  so,  where  the  alleged  damage  consists  in 
loss  of  marriage, §  the  plaintiff  must  point  out  the 

*   1  Str.  666.  t  B.  N.  P.  7.     1  Will.  Saund.  243.  n-  5- 

j  B.  N.  P.  7.     1  Roll.  Ab.  58. 

§  1  Sid.  396.     1  Vent.  4.     Cro.  J.  499.     12  Mod-  597. 


(1)  Herrick  v-  Lapham,  10  Johns.  Rep-  281.     Hersh  v   Ringwalt,  3  Yeates, 
503. 


.}2ii 

individual    with  whom   the    marriage   would  other- 
wise have  been  contracted. 

And  for  the  same  reason,  where  the  plaintiff 
states  a  marriage  with  J.  N  to  have  been  hindered, 
she  cannot  afterwards  give  in  evidence  loss  of  mar- 
riage with  an)'  other  person.* 

But  it  has  been  said,  that  greater  certainty  is 
requisite  where  the  special  damage  is  the  gist  of  the 
action,  than  where  it  is  merely  laid  by  way  of  aggra- 
vation.! 

Where  the  special  damage  consists  in  the  t  plain- 
tiff's having  been  prevented  from  disposing  of,  or 
settling  his  estate,  it  is  necessary  to  show  how 
he  was  prevented,  as  that  he  had  taken  some 
steps  for  the  purpose  of  selling,  and  that  the  bid- 
ding was  stopt  by  the  defendant's  act;  but  it  is 
unnecessary  to  specify  the  names  of  any  of  the 
bidders. 

Where  the  plaintiff, §  who  had  been  a  preacher 
in  a  chapel  to  a  dissenting  congregation,  averred 
generally  in  the  declaration,  that  by  reason  of  the 
words  the  persons  who  frequented  the  said  chapel 
had  refused  to  permit  him  to  preach  there,  and  had 
discontinued  giving  him  the  gains  and  profits  which 
they  had  usually  given,  and  otherwise  would  have 
given ;  the  court  ||  held  on  motion  in  arrest  of  judg- 
ment, that  where  a  plaintiff  brings  an  action  for  slan- 
der, by  which  he  lost  his  customers  in  trade,  he 
ought,  in  his  declaration,  to  state  the  names  of  these 
customers,  in  order  that  the  defendant  may  be  ena- 

*  Lord  Ray.  1007. 

t  Per  Cur.  in  Wetherell  v.  Clerkson,  12  Mod.  597.     2  Lut.  1295. 
I  Smead  v.  Badley,  Cro.  J.  397.     Sir  W.  Jones,  196. 
t  6  Hartley  v,  Herring,  S  T.  R.  130.  ||  4  Burr-  2424. 


324 

bled  to  meet  the  charge,  if  it  be  false ;  but  that  in 
the  principal  case,  the  plaintiff  could  not  have  stated 
the  names  of  all  his  congregation,  and  that  it  was 
sufficient  to  say  that  he  had  been  removed  from  his 
office,  and  had  lost  the  emoluments  of  it.(l) 

Where  actionable  words  are  spoken,  within  the 
scope  of  a  private  jurisdiction,  the  declaration  may 
allege  a  consequential  loss  of  customers  at  a  place 
beyond  the  limits  of  such  jurisdiction.  For  the 
allegation  is  only  in  respect  of  damages  to  increase 
them,  and  may  be  inquired  of  in  any  place  whatso- 
ever.* 

Where  the  words  are  in  themselves  actionable , 
and  the  character  of  the  plaintiff  is  stated  in  aggra- 
vation, it  is  not  necessary  to  state  the  circumstances 
of  that  situation  with  so  great  certainty  as  where 
it  is  essential  to  the  action.  Thus,  where  the  words 
are  spoken  of  a  candidate  to  serve  in  parliament,  it 
is  sufficient  to  state  the  fact  generally,  and  unneces- 
sary to  set  forth  the  writ  to  the  sheriff.f 

In  general,]:  the  place  where  the  words  are  spo- 
ken is  immaterial :  yet,  if  the  plaintiff  state  the 
place  by  way  of  aggravation,  and  not  merely  as  ve- 
nue, it  seems  he  will  be  bound  to  prove  the  speak- 
ing to  have  been  in  the  place  named. 

With  respect  to  joining  different  injuries  in  the  same 
proceeding,  words  spoken  at  different  times  may  be 
included  in  the'  same  count. 

*  Ireland  v.  Blockwell  in  error,  Cro.  C-  570. 

t  Hanvood  v.  Sir  J.  Astley,  1  N.  R.  47.  «J  B.  N.  P.  5. 


(1)   Whether  being  refused  admission  into  a  Presbytery  be  such  special  da- 
mage as  the  law  will  take  notice  of.     Qucere.    M'Millan  y-  Birch,  1  Binn-  178 


326 

In  such  case,  however,  if  it  should  appear  on 
the  face  of  the  count  tha«  the  words  were  spoken 
at  different  times,  and  that  some  of  them  were  not 
actionable,  y.  dgment  would  be  arrested  if  entire 
damages  were  given  for  the  whole  count. 

And  it  seems  a  count  for  verbal  slander*  may  be 
joined  with  a  count  for  a  libel  in  the  same  declara- 
tion. And  the  causing!  a  plaintiff  to  be  brought 
before  a  magistrate  may  be  joined  with  a  complaint 
for  a  malicious  accusation  before  the  magistrate. 

*  King  v.  Waring  and  uxor,  5  Esp.  R.  13.  t  Cro.  Car-  271, 


CHAPTER  XXIII. 


Of  the  Defendants  Plea. 

The  principal  circumstances  of  which  the  defen- 
dant may  avail  himself  in  resisting  an  action  for  slan- 
der, have  already  been  sketched  out ;  the  technical 
mode  of  answering  the  plaintiffs  claim  upon  the  re- 
cord is  next  to  be  considered. 

Under  this  division  it  may  be  inquired,  first,  what 
must  be  pleaded;  secondly,  what  may  be  pleaded ; 
and  thirdly,  how  it  should  be  pleaded. 

1st,  What  must  be  pleaded. 

Since  an  action  upon  the  case  is  founded  on  the 
justice  and  equity  of  the  plaintiffs  claim,  it  is  a 
general  rule  that  whatever  will,  in  equity  and  con- 
science, preclude  the  plaintiff  from  recovering, 
need  not  be  pleaded,  but  may  be  given  in  evidence 
under  the  general  issue. *(1)  In  the  particular  case 
of  an  action  for  slander,  if  the  instances  be  excepted 
where  the  defendant  relies  on  the  truth  of  the  im- 
putation, or  the  plaintiff  is  barred  by  the  sta- 
tute of  limitations,  there  does  not  appear  to  be 
any  defence  of  which  he  may  not  avail  him- 
self under  the  general  issue  ;  since,  in  every  other 

*  Burr.  1353.     1  Bl.  R.  388.     1  Wils.  45. 


(1)  Lane  v.  tfpplegate,  1  Starkie's  Rep.  97  ;  and  observe  the  reasoning  of  the 
Tudfres  in  Fairmm  v.  Ives,  5  Barn.  &  Aid.  Rep.  642.  S.  C.  1  Dowl.  &  Ryl.  252, 


327 

ease  where  the  plaintiff  is  not  entitled  to  recover, 
he  must  fail  from  his  inability  to  substantiate  in 
evidence  the  two  leading  circumstances  whose 
union  is  essential  to  the  action,  the  wrongful  act 
of  the  defendant,  and  the  loss  resulting  to  himself ; 
these,  in  all  cases  where  the  general  issue  is  plead- 
ed, he  must  prove  upon  the  trial,  and  in  default  of 
such  proof,  would  be  liable  to  a  nonsuit ;  and  where 
he  has  established  a  prima  facie  case,  it  seems 
equally  competent  to  the  defendant  to  controvert 
and  overthrow  it  by  opposite  evidence.  Where  the 
defendant  insists  that  the  plaintiff  is  not  entitled  to 
recover,  because  he  is  really  guilty  of  that  where- 
with he  has  been  charged,  the  justice  of  the  case 
imperatively  requires  that  the  plaintiff  so  taxed 
with  an  offensive  or  criminal  imputation,  which 
his  adversary  proposes  to  subtantiate  against  him 
in  evidence,  should  be  apprized  by  means  of  a 
special  plea,  of  the  nature  and  circumstances  of 
the  charge,  that  he  may  be  fully  prepared  to  answer 
it  in  court. 

The  rule  of  law  upon  this  head  has  long  been 
settled,  that  the  defendant,  if  he  mean  to  rely  upon 
the  truth  of  that  which  he  has  published,  either  in 
bar  of  the  action  or  in  mitigation  of  damages,  must 
plead  it  specially.(l) 

Formerly  a  distinction  was  made  in  this  respect 
between  words  imputing  an  offence  generally,  and 
such  as  charged  a  particular  and  specific  one. 


(1)  And  where  the  general  issue  is  pleaded  in  an  action  for  a  libel,  the  plain- 
tiff cannot  go  into  evidence  for  the  purpose  of  showing  that  the  allegations  in 
the  libel  are  false.     Shwrt  v.  Lovell,  2  Starkie's  Rep.  93- 


In  the  case  of  Smith  v.  Richardson,*  the  twelve 
Judges  were  unanimously  of  opinion,  that  where 
the  words  import  a  general  felony,  as  "  Thou  art  a 
thief,"  or  "  Thou  stolest  a  horse,"  or  any  other  thing 
not  specifying  the  person  from  whom  or  when  and 
where  it  was  stolen,  the  defendant  ought  not,  upon 
the  general  issue,  to  be  allowed  to  give  the  fact  in 
evidence  to  mitigate  damages.  The  words  in  the 
principal  case  were,  "  John  Smith  is  a  rogue,  and 
hath  stolen  my  beer ;  John  Smith  has  robbed  me  of 
my  beer."  And  eight  of  the  Judges  were  of  opi- 
nion, that  in  no  case  whatever  where  the  words  im- 
ported felony  or  treason,  such  evidence  ought  to  be 
admitted  on  not  guilty  pleaded  ;  but  four  were  of 
opinion  that  it  might,,  where  the  words  imported  a 
particular  felony. 

But  in  the  case  of  the  Bishop  of  Salisbury  v. 
Nash,  quoted  in  the  above  case,  which  was  an  action 
for  saying  of  the  plaintiff,  "  He  preacheth  nothing 
but  lies  in  the  pulpit."  The  defendant  pleaded  not 
guilty,  and  his  counsel  offered  to  give  evidence  of 
the  truth  of  the  words  in  mitigation  of  damages ; 
but  Lord  Macclesfield  refused  to  admit  it  with  great 
indignation. 

Where  a  particular  offence  not  capital  was 
charged,!  evidence  of  the  truth  was  allowed  under 
the  general  issue. 

But  in  the  case  of  Underwood  v.  Parkes,  the  de- 
fendant pleaded  not  guilty 4  and  offered  to  prove 
the  words  to  be  true  in  mitigation  of  damages, 
which  the  Chief  Justice  refused  to  permit,  saying, 
that  at  a  meeting  of  all  the  Judges  upon  a  case  that 

*  Willes,  20-  +  B.  N.  P.  7-  %  Str.  1200, 


arose  in  the  Common  Pleas,  a  large  majority  of  them, 
had  determined  not  to  allow  it  lor  the  future,  but 
that  it  should  be  pleaded,  whereby  the  plaintiff  might 
be  prepared  to  defend  himself,  as  well  as  to  prove 
the  speaking  of  the  words.  That  this  was  now  a 
general  rule  among  them  all,  which  no  Judge  would 
think  himself  at  liberty  to  depart  from  ;  and  that  it 
extended  to  all  sorts  of  words,  and  not  barely  to 
such  as  imported  a  charge  of  felony.  (1) 

Where  the  justification  arises  from  the  occasion  on 
which  the  words  were  published,  or  from  the  parti- 
cular character  of  the  author,  it  seems  unnecessary 
to  plead  the  defence  specially,  since  the  nature  and 
essence  of  the  defence  is  the  absence  of  that  malice 
which  is  essential  to  support  the  actiort. 

Thus,  where  the  words  have  been  spoken,  or  the 
alleged  libel  published,  by  a  member  of  either  house 
of  parliament  in  the  course  of  his  public  duty,*  by 
a  Judge,f  acting  in  his  judicial  capacity,  by  a  coun- 
sellor, in  the  management  of  the  cause  when  the\ 
are  pertinent  to  the  issue,  and  have  been  suggested 

*  1  Esp.  R.  226.     1  W.  &  M.  st-  2.  c.  2.  t  2  N.  R.  341. 


(1)  JUdermanv.  French,  1  Pick.  Rep.  1.  Van  jlnkin  v.  JVestfall,  14  Johns, 
Rep.  233.  Barns  v.  Webb,  1  Tyl.  Rep.  17.  Else  v.  Ferris,  Anth.  N.  P.  Rep. 
23.  Shepardv.  Merrill,  13  Johns.  Rep.  475.  See  also  Andrews  v.  Van  Duzer, 
11  Johns.  Rep-  38.  But  though  in  an  action  of  slander,  for  charging  the  plain- 
tiff with  perjury  in  a  judicial  proceeding,  the  defendant,  on  the  plea  of  not  guilty, 
though  not  permitted  to  prove  the  falsity  of  the  words  sworn  by  the  plaintiff",  and 
thus  fix  upon  him  indirectly  the  charge  of  perjury,  may  prove  what  those  words 
were,  in  mitigation  of  damages.  Grant  v.  Hover,  6  Munf.  Rep.  13.  Lord  Holt, 
however,  held  in  one  case,  that  where  the  words  charged  a  particular  crime,  not 
capital,  i-  e-  adultery  with  one  J.  S-,  the  defendant  under  the  general  issue 
might  give  the  truth  in  evidence,  in  mitigation  of  damages  ;  though  he  could  nol 
give  in  evidence  that  the  plaintiff' had  committed  the  crime  with  an'y  other  wo 
man.     SmUhitrv-  Harrison,  !  T,d.  Raym 


&30 

by  a  client  ;*(!)  by  a  witness,  in  delivering  his  evi- 
dence :f  by  a  master,  in  giving  the  character  of  a 
servant  ;|  or,  in  short,  by  any  person  under  circum- 
stances which  rebut  the  allegation  of  malice, §(2) 
the  general  plea  is  sufficient.  And  this  principle 
seems  to  comprehend  the  cases  where  parliamenta- 
ry or  judicial  proceedings  have  been  faithfully  re- 
ported. An  action  was  brought  against  the  editor 
of  the  Times  newspaper,  |]  for  having  published  a 
libel  on  the  plaintiff;  the  publication  complained  of 
imported  to  be  an  account  of  an  application  to  the 
Court  of  King's  Bench,  for  an  information  against 
the  plaintiff  and  Mr.  Bingham,  both  justices  of  the 
peace  for  Hampshire,  for  refusing  to  license  an  inn 
at  Gosport.  The  defendant  pleaded  the  general 
issue  ;  and  at  the  trial,  after  the  plaintiff  had  proved 
the  publication  of  the  paper  by  him,  a  person  whom 
he  employed  to  collect  legal  intelligence  for  the  use 
of  his  paper,  was  called,  in  order  to  prove  that  the 
report  was  a  true  and  faithful  account  of  what  had 
passed  in  the  Court  of  King's  Bench  upon  the  mo- 
tion. It  was  objected  on  the  other  side,  that  the  de- 
fence ought  to  have  been  put  upon  the  record,  and 
could  not  be  given  in  evidence  under  the  genera! 
issue.  The  objection,  however,  was  overruled  by 
Eyre,  C.  J.,  and  the  jury  found  a  verdict  for  the  de- 
fendant.    Afterward  a  motion  was  made  in  arrest  of 

Cru.  J.  00.     Popb.  69.  f  Brownl-  2- 

1  T-  R.  111).     3  B-  fc  P.  537.  Seel  1  Will.  Saiind.  J 31.  n.  1 

1  B.  &  P.  525. 


1. 1)   Hodgson  t.  Scarlett,  1  Barn,  k  Aid.  232.    Holt's  Rep.  631. 
2}  See  Pmrman  v.  Fees,      Ba  S    C.  1  Dow- &  Rvl.  252 


judgment;  one  ground  for  which  was,  that  the  mat- 
ter proved  by  the  defendant  at  the  trial  had  been 
improperly  received  in  evidence  under  the  general 
issue,  and  ought  to  have  been  pleaded  in  bar  to  the 
action.  After  argument,  the  court  doubted  upon 
this  point,  the  case  stood  over,  and  no  judgment  was 


ever  given. 


In  Astley  v.  Yonge,*  and  Styles  v.  Nokes,f  the 
latter  of  which  was  subsequent  to  that  of  Curry  v. 
Walter,  the  defendants  justified  specially. 

Before  the  case  of  Underwood  v.  Parks, |  it  ap- 
pears to  have  been  the  practice  to  allow  evidence  of 
the  truth  of  the  publication  in  mitigation  of  damages, 
generally,  and  in  some  instances  in  bar  of  the  ac- 
tion, which  affords  an  inference  that  the  present  de- 
fence, which  would  be  much  less  likely  to  subject  the 
plaintiff  to  any  inconvenience  by  way  of  surprise, 
was  also  admissible  under  the  general  plea.     To  the 
great  rule  of  pleading  an  action  on  the  case,  namely, 
that  the  defendant  is  at  liberty,  under  the  genera) 
plea,  to  give  every  matter  of  justification  or  excuse 
in  evidence,  the  action  for  slander  furnishes  an  ex- 
ception in  the  instance  where  the  defendant  relies 
on  the  truth  of  his  assertion  ;  and  such  a  defence 
contains  an  intrinsic  necessity  for  making  it  an  ex* 
ception  ;  but  here  no  such  reasons  oppose  them- 
selves to  the  general  rule  ;  there  is  no  room  for  sur- 
prise, since  the  plaintiff  is  informed  by  the  publica- 
tion itself  that  it  purports  to  be  a  report  of  a  parlia- 
mentary or  judicial  proceeding.     It  seems  difficult 
to  assign  a  distinction  in  principle  between  this  case 
ami  those  where  the  words  are  spoken  in  the  course 

*  B-irr.  807-  '   7  I'..    9K  .   Sir-  12^0. 


of  a  judicial  proceeding,  by  a  judge,  counsellor,  or 
witness,  in  the  latter,  since  the  law  excludes  the  idea 
of  malice,  the  situation  of  the  party  is  evidence  un- 
der the  general  issue ;  and  the  reason  applies  with 
equal  force  to  the  defence  in  question,  where  the 
law  protects  the  defendant  on  grounds  of  public  ex- 
pediency in  the  fair  publication  of  judicial  or  par- 
liamentary proceedings,  and  will  not  permit  his  con- 
duct to  be  attributed  to  malice. 

It  does  not  appear  that  a  defendant,  who  repeated 
the  slander  of  another,  and  who  has  given  up  his 
author,  is  under  the  necessity  of  pleading  the  mat- 
ter specially.*  The  defence  in  such  case  does  not 
depend  upon  naming  the  author  and  his  scandal  in 
the  plea,  but  is  grounded  entirely  on  the  circumstance 
of  the  defendant's  having,  at  the  time  of  publication, 
supplied  the  plaintiff  with  the  means  of  obtaining  a 
remedy  against  a  former  publisher.(l) 

The  situation  of  a  person  thus  lending  his  aid  to 
an  injured  party,  repels,  at  least,  in  the  first  instance, 
if  it  does  not  wholly  obstruct  the  inference  of  legal 
malice. 

In  an  action  for  words,f  alleging  loss  of  marriage 
with  J.  S.,  the  defendant,  under  the  general  issue, 
offered  to  prove  that  J.  S.  was  the  plaintiffs  aunt ; 
but  it  was  held  that  the  evidence  was  inadmissible, 

7  T.  II.  17.     5  East,  463. 
j   The  case  of  Sir  C  Gerard's  bailiff,  B.  N.  P.  7. 


(1)  Under  the  general  issue  the  defendant  cannot  give  in  evidence,  in  miti- 
gation of  damages,  that  the  specific  facts  in  which  the  slander  consists,  and  for 
which  the  action  is  brought,  were  communicated  to  him  by  a  third  person,  not 
named  at  the  time.  Milts  tt  ux-  v.  Spencer  et  ux.  Holt's  Rep.  533.  Kennedy  v. 
Gregoru.     Morris  r-  Dunne.  1  Binn-  85,  00,  contm- 


that  the  right  to  marry  could  not  then  be  tried,  and 
that  it  was  sufficient  if  they  intended  to  marry  ;  and 
that  the  woman,  for  that  cause,  refused. 

It  seems  difficult  to  support  this  decision  on  legal 
principles,  since  the  preventing  that,  which  could  not 
legally  have  taken  place,  can  scarcely  be  considered 
as  a  damage  for  which  the  plaintiff  is  entitled  to  re- 
cover a  compensation. 

But,  2dly,  though  the  defendant  may,  with  the 
exceptions  mentioned,  reserve  his  defence  till  the 
trial,  he  frequently  has  it  in  his  election  to  answer 
the  plaintiff  specially  upon  the  record.  And  the 
rule,  as  laid  down  in  the  fourth  report,  is,  that  the  de- 
fendant* shall  never  be  put  to  the  general  issue  ivhen 
he  confesses  the  ivords  and  justifies  them,  or  confesses 
the  ivords,  and  by  special  matter  shows  that  they  are 
not  actionable. 

Since  the  plaintiffs  ground  of  action  consists  of 
the  defendant's  having  maliciously  published  con- 
cerning him  that  which  has  occasioned  temporal 
prejudice,  and  according  to  the  foregoing  rule,  the 
publication  of  the  actionable  words  must  be  con- 
fessed, it  follows  that  the  defendant  may  plead  any 
matter  in  bar  which  either  rebuts  the  malice  or  shows 
that  no  damage,  either  presumptive  or  actual,  has 
been  sustained. 

Where  the  defendant  has  uttered  the  alleged 
slander  in  a  judicial  proceeding,!  or  in  correctly  re- 
porting parliamentary  or  judicial  proceedings,  he 
may  justify  by  pleading  the  fact,  since  in  these  cases 
the  presumption  of  law  is  conclusive  in  favour  of  the 

*  4 €0.14.    Pop.  6fi.  fCro.Eliz.2_30 


3:34 

defendant  ;(1.)  so  where  the  defendant,  at  the  time 
of  publication,*  gives  up  his  author,  unless  it  appear 
that  he  really  knew  the  charge  to  be  false,  the  pre- 
sumption is  equally  strong  in  his  favour,  and  he  may 
plead  the  fact  for  the  purpose  of  rebutting  the  aver- 
ment of  malice. 

So,  where  a  barrister,!  in  the  course  of  a  cause, 
asserts  that  which  is  relevant  to  the  issue,  and  has 
been  suggested  by  his  client. 

In  other  cases,  though  the  inference  of  malice 
may  be  rebutted  on  the  trial,  as  by  showing  that 
the  party  had  an  interest,  or  was  giving  the  cha- 
racter of  a  servant,  yet  it  does  not  appear  that  the 
matter  can  be  exhibited  upon  the  record,  since  the 
character  in  which  the  defendant  alleges  himself  to 
have  acted  is  not  conclusive  as  to  his  intention,  and 
amounts  at  most  to  a  simple  negation  of  malice, 
which  is  included  in  the  general  issue. 

The  damage  sustained  is  either  the  legal  damage, 
presumed  by  law  in  the  case  of  words  intrinsically 
actionable,  or  an  actual  damage  to  be  proved  in  evi- 
dence, and  in  either  case  the  defendant  may  show, 
by  his  plea,  that  none  has  been  sustained  ;  and  this 
may  be  done  in  the  first  instance  either  by  the  in- 
troduction of  new  matter,  or  by  a  traverse  of  facts 
already  stated,  showing  that  the  terms  complained  of 
were  not  used  in  an  actionable  sense. 

*7T.R.  17.     5  East,  463-  1   Cro.  Jac.  90. 


(1)  Quezrc  Whether  it  be  lawful  to  publish  proceedings  of  a  Court  of  Law 
containing  matter  defamatory  of  a  person  neither  a  party  to  the  suit,  nor  present 
at  the  time  of  inquiry.  Lewis  v.  Clement,  3  Barn.  &  Aid.  702.  S.  C  3  Brod.  & 
Bing.  297.  It  is  libellous  to  publish  a  correct  report  of  proceedings  had  before 
a  magistrate  relative  to  a  matter  of  which  ho  had  not  cognizance-  M'Grezor 
v.  Thwmlcs,  4  Dow.  &  Ryl.  Rep.  695. 


385 

Thus  it  has  been  held,  that  in  an  action  tor  calling 
the  plaintiff  a  murderer,  it  may  be  pleaded  that  the 
word  was  used  in  the  course  of  a  conversation  about 
unlawful  hunting,  and  that  the  words  merely  im- 
ported that  the  plaintiff  was  a  murderer  of  hares.* 
So,  where  the  plaintiff  declared  upon  an  imputation 
of  an  unlawful  maintenance,  it  was  held  that  the  de- 
fendant might  justify,  by  showing  that  the  words 
were  used  in  reference  to  a  lawful  maintenance.! 

So,  in  the  case  of  Kinnersley  v.  Cooper,:}:  the 
plaintiff  declared  that  he  had  taken  on  oath,  which 
was  recorded  in  the  court  of  the  Guildhall,  in  a 
judicial  proceeding;  and  that  the  defendant  speak- 
ing of  that  oath,  had  said,  that  he  had  sworn  falsely. 
The  defendant,  in  his  plea,  denied  that  any  such  oath 
had  been  taken  ;  and  the  plaintiff  demurred,  on  the 
ground  that  the  taking  the  oath  was  but  conveyance 
to  the  action,  and  not  traversable  ;  and  secondly, 
that  the  plea  was  bad,  since  it  amounted  to  the  gene- 
ral issue.  But  the  justices  were  of  opinion  that  the 
matter  was  traversable,  since  the  action  was  ground- 
ed upon  it. 

In  the  case  of  Lord  Cromwell  v.  Denny, §  the 
plaintiff  declared  in  scandalum  magnatum  against 
the  defendant,  for  having  charged  him  with  liking 
those  who  maintained  sedition. 

The  defendant  pleaded  that  *  he  was  vicar  of 
Northlinham,  which  was  a  benefice  with  the  cure 
of  souls  ;  and  that  the  plaintiff  procured  J.  T.  and 
J.  G.  to  preach  severally  in  the  church  of  North- 
linham; who,  in  their  sermons,  inveighed  against 

*  4  tap-  14.  rri  Jac  90.  Cro-  E-  1<>S-  '>•  Rep-  H 

I  Rep.  1  1- 


&36 

the  book  of  Common  Prayer,  which  was  establish- 
ed by  the  queen  and  the  whole  parliament  in  the 
first  year  of  her  reign,  and  affirmed  it  to  be  super- 
stitious and  impious ;  upon  which  the  plaintiff 
and  defendant,  speaking  in  the  said  church  of  these 
sermons,  because  the  vicar  knew  that  they  had  no 
license,  nor  were  authorized  to  preach,  when  they 
were  ready  to  preach,  before  their  sermons,  forbade 
them,  but  they,  by  the  encouragement  of  the 
plaintiff,  proceeded,  when  the  plaintiff  said  to  the 
defendant,  "  Thou  art  a  false  varlet,  I  like  thee 
not."  To  which  the  vicar  said,  "It  is  no  marvel 
that  you  like  not  of  me,  for  you  like  of  these  (in- 
nuendo the  said  J.  T.  and  J.  G.)  that  maintain  se- 
dition against  the  queen's  proceeding."  It  was 
moved  by  the  plaintiffs  counsel  that  the  plea  was 
bad,  since,  if  the  matter  contained  in  it  amounted 
to  a  justification,  then,  upon  the  dialogue  between 
the  parties,  the  defendant  was  not  guilty,  and 
that  he  ought  to  have  pleaded  so,  and  given  the 
matter  in  evidence.  But  the  court  held,  that  the 
defendant  had  done  well  to  show  the  special  mat- 
ter by  which  the  sense  of  the  word  sedition  appears 
upon  the  coherence  of  all  the  words,  not  to  mean 
any  violent  and  public  sedition,  as  it  had  been  de- 
scribed to  mean,  and  as  ex  vi  termini  the  word  itself 
imports. 

In  these  and  similar  cases,  the  effect  of  the  jus- 
tification is  to  show,  that  there  was  no  legal  da- 
mage, the  terms  not  having  been  used  in  an  ac- 
tionable sense  ;  and  it  seems  that  it  is  equally  open 
to  show  by  special  matter  that  no  actiutl  damage 


iJ37 

has  been  sustained  for  which  an  action  is  maintain- 
able. 

Thus,  in  the  case  where  the  plaintiff  alleged  that 
by  reason  of  the  words  he  had  lost  his  marriage 
with  J.  S.,  the  defendant  might  plead  that  J.  S.  was 
aunt  to  the  plaintiff:  but  the  plea  of  non  damnificatus 
generally  would  be  bad.* 

To  these  pleas,  some  of  which  must,  and  others 
may  be  pleaded,  has  been  added  the  plea  of  mi- 
nority, or  at  least,  that  the  defendant  was  within  the 
agef  of  seventeen ;  but  this  is  contradicted  by  the 
observation  of  Mr.  Justice  Lawrence  in  Woolnoth 
v.  Meadows  ;J  and  Lord  Kenyon  expressly  stated, 
that  if  an  infant§  utter  slander,  he  is  responsible 
for  it  in  a  court  of  justice.  When  the  words,  as 
stated  upon  the  record,  appear  demurrable,  it  may  be 
useful  to  apply  the  rule  which  Sir  E.  Coke  termed 
"an  excellent  point  of  learning  in  actions  for 
slander,"  namely,  "  observe  the  occasion  and  cause 
of  speaking  of  them,  and  how  it  may  be  pleaded 
in  the  defendant's  excuse.  When  the  matter  in 
fact  will  clearly  serve  for  your  client,  although  your 
opinion  is,  that  the  plaintiff  has  no  cause  of  action, 
yet  take  heed  you  do  not  hazard  the  matter  upon 
a  demurrer,  in  which,  upon  the  pleading  and  other- 
wise, more  perhaps  will  arise  than  you  thought  of, 
but  first  take  advantage  of  matters  of  fact,  and 
leave  matters  of  law,  which  always  arise  upon  the 
matters  of  fact  ad  ultimum,  and  never  at  first  de- 
mur in  law,  when  after  trial  of  the  matters  in  fact, 
the  matter  in  law  will  be  saved  to  you." 

*  Dyer,  26.  f  Com.  Dig.  Pleader,  2.  L.  2-  J  5  East,  47 1 

§  3  T.  R.  337.     See  also  Bac.  Ab.  tit.  Infancy-  l|  4  Rep.  J  4 

48 


ass 

Where  the  action  is  brought  lor  claiming  title  to 
an  estate,  by  means  of  which  the  plaintiff  is  pre- 
vented from  selling  or  letting  it,  and  the  declara- 
tion alleges  that  the  defendant  asserted  a  false  title, 
knowing  it  to  be  false,  if  the  defendant  has  in  fact 
any  colour  of  claim,  he  should  plead  the  general 
issue,  by  which  means  the  plaintiff*  will  be  obliged 
to  prove,  on  the  trial,  that  he  knew  it  to  be  false, 
and  it  is  said  that  the  fact  of  knowledge  cannot  be 
traversed  in  pleading.f 

Thirdly,  How  it  must  be  pleaded. 
Observations  upon  the  manner  of  pleading  relate 
to  the  plea  of  justification  generally,  to  particular 
pleas,  or  to  the  joinder  of  different  pleas. 
1.  To  the  plea  of  justification  generally. 
The  plea  of  justification  in  general  must  confess 
the  publication  as  laid  in  the  declaration,  otherwise 
it  will  be  bad  on  demurrer  ;t  and  this  is  an  imme- 
diate consequence  resulting  from  the  great  rule  of 
pleading,  which  requires  the  r  arty  pleading  either 
to  confess  the  previous  matter,  and  avoid  it,  or  to 
traverse  it.(l 

In  Johns  v.  Gittens,§  the  wards  laid  in  the  de- 
claration were,  "  Thou  hast  played  the  thief  with 
me,  and  hast  stolen  my  cloth  and  half  a  yard  of 
velvet."  The  defendant  pleaded  that  the  plaintiff 
was  his  tailor,  and  that  upon  such  a  day  he  delivered 

*  2  East,  437.  t  4  Co.  18.     Cro.  J.  398. 

t  Jon.  307.     Cro.  Eliz.  153.  §  Cro.  Eliz.  239. 


(1)  Where  the  defendant  pleads  the  general  issue,  and  also  in  justification, 
that  the  words  spoken  were  true,  the  plaintiff  need  not  prove  the  speaking  of 
the  words  upon  the  trial  of  the  general  issue.     Jackson  v.  Stetsnn  el  vr.  1 5  Mas" 
Rep.  49.     See  JHdermnn  v.  Frinch,  t  Pick.  Rep.  1 


to  him  a  yard  and  a  half  of  velvet,  to  make  him  a 
pair  of  hose,  and  he  made  them  too  straight ;  by 
reason  whereof  he  spoke  these  words,  "  Thou  hast 
stolen  part  of  the  velvet  which  I  delivered  you," 
denying  that  he  spoke  any  words  aliter  vel  alio 
modo. 

The  plaintiff  demurred,  and  it  was  held  that  the 
plea  was  bad,  for  not  confessing  the  words  laid  in 
the  declaration.* 

If  the  defendant  justify  specially,  it  will  not  be 
necessary  for  him  in  his  plea  to  deny  the  innuendos 
and  epithets  contained  in  the  declaration;  for  if 
the  fact  be  justified,!  the  motive  intended  and 
manner  are  immaterial.  Unless,  from  the  particu- 
lar occasion  of  speaking  the  words,  the  day,  or  the 
place,  become  material,  the  plea  should  adopt  the 
day  and  the  place  stated  in  the  declaration  with- 
out a  traverse ;  but  when  they  become  material, 
and  differ  from  those  stated  in  the  declaration,  the 
plea  should  traverse  the  speaking  of  the  words 
on  the  day  or  at  the  place  laid  in  the  declara- 
tion. Thus,  if  the  plaintiff  declare  of  words  spoken 
at  B.,  in  the  county  of  Salop,  and  the  defendant 
mean  to  justify  the  publishing  them  in  a  judicial 
proceeding  at  Westminster,  he  should  traverse;  the 
publishing  them  at  B.,  in  Salop,  at  any  time. 

The  special  plea  of  justification,  grounded  upon 
the  truth  of  the  publication,  may  be   considered ; 
first,  with  reference  to  the  matter  contained  in  the 
plea ;  and  secondly,  with  regard  to  the  charge  com- 
plained of  in  the  declaration. 

*  See  also  Cro.  Eliz.  153,  Bellingham  v.  Mynors.  t  Burr.  807. 

X  See  the  case  of  Buckley  v.  Wood,  4  Rep.  14.    1  fialk.  222,    1  Will.  Saund. 
82.  n.  3- 


34U 

The  same  degree  of  certainty  and  precision  are 
required  in  this  plea  as  are  requisite  in  an  indictment 
or  information. 

In  Wyld  v.  Cookman,*  the  words  were,  "  Thou 
wast  forsworn  in  such  a  leet,  on  such  a  day."  The 
defendant  pleaded  that  the  plaintiff  the  same  day 
was  sworn  with  others  before  the  steward,  to  pre- 
sent, &c,  and  that  they  presented  such  a  ditch 
not  scoured  ad  nocumentum,  &c.  which  was  false, 
and  so  justifies,  but  did  not  say  that  they  knew 
it  to  be  false  of  their  own  proper  knowledge.  It 
was  moved  on  demurrer,  that  they  might  have 
presented  it  upon  evidence.  Gawdy  and  Fen- 
ner,  Justices,  held,  that  it  was  properly  and  com- 
monly to  be  intended  that  the  presentment  was 
false  of  their  own  knowledge,  and  so  perjury ;  and 
that  if  they  presented  it  upon  evidence,  the  plain- 
tiff ought  to  show  it  in  his  replication.  But  Pop- 
ham,  J.  said,  that  a  man  may  not  justify  by  intend- 
ment, but  that  it  ought  to  have  been  precisely 
alleged.  But  there  was  another  defect  in  the  plea 
which  was  held  by  all  the  justices  to  be  incurable, 
namely,  the  want  of  an  allegation  that  the  ditch 
was  within  the  leet;  for  if  not,  then  the  presentment 
thereof  was  out  of  their  charge,  and  there  was  no 
perjury. 

Where  the  original  charge  is  in  itself  specific, 
the  defendant  need  not  further  particularize  it  in 
his  plea.  In  an  action  on  the  casef  for  calling  the 
plaintiff  thief,  and  saying  that  he  stole  two  sheep 
of  J.  S.  the  defendant  pleaded  that  the  plaintiff 
stole  the  same  sheep,  by  reason  of  which  he  called 

*  Cro.  Eli/.  492-  f  Rr.  action  snr  oas-  27  H-  8,  22.  pi.  3- 


341 

him  thief,  as  well  he  might ;  and  the  plea  was  held 
good. 

Secondly,  as  to  the  nature  of  plea,  with  refer- 
ence to  the  words  laid  in  the  declaration.  Though 
the  charge  imputed  to  the  plaintiff  be  general,  as  laid 
in  the  declaration,  the  defendant  must,  in  his  plea, 
charge  him  with  specific*  instances  of  offences  of 
the  same  nature  with  the  general  charge.  Thus  a 
defendant  is  not  at  liberty  to  charge  a  person  with 
swindling,  without  showing  specific  instances  of 
it;  for  whenever  one  charges  another  with  fraud, 
he  must  know  the  particular  instances  upon  which 
his  accusation  is  founded,  and  therefore  ought  to 
disclose  them.f(i) 

In  Morris  v.  Langdale,|  which  was  an  action  for 
calling  the  plaintiff  (who  was  a  stock-jobber)  a 
lame  duck,  the  defendant  justified,  pleading  gene- 
rally that  the  plaintiff  had  not  fulfilled  his  contracts. 
Upon  demurrer,  Lord  Eldon,  C.  J.  observed,  that 
it  had  been  strongly  argued  in  support  of  the  de- 
murrer to  the  plea,  that  in  consequence  of  its  gene- 
rality the  plaintiff  must  proceed  to  trial  at  the  hazard 
of  being  able  to  produce  evidence  applicable  to  any 
contract  which  he  ever  made.  But  the  declaration 
itself  was  defective,  and  the  plaintiff  had  leave  to 
amend. 

In  Newman  v.  Bailey, §  the  plaintiff,  a  justice 
of  the  peace,   brought  an   action   against  the  de~ 

*  1  Roll.  Ab.87.  t  Styles,  118.     Strachey's  case. 

t  2  B.  &  P.  284.  §  Hil.  16  G.  3.  B.  R. 


(1)  T 'Anson  v.  Stuart,  1  Term  Rep.  74S.     Holmes  v.  Catcsby,  1  Taunt.  542i 
Van  JVe.tj  v.  Hamilton,  19. Toons-  Rep.  368- 


;342 

fendant,  for  having  charged  him  with  "  pocket- 
ing all  the  fines  and  penalties  forfeited  by  delin- 
quents whom  he  had  convicted,  without  distri- 
buting them  to  the  poor,  or  in  any  manner  ac- 
counting for  a  sum  of  50/.  then  in  hand."  The 
defendant  pleaded  that  the  plaintiff  was  a  justice 
of  the  peace,  and  that  during  the  time  he  acted 
as  such,  he  convicted  divers  and  sundry  persons 
respectively,  in  divers  and  sundry  fines  and  sums 
of  money,  for  and  on  pretence  of  their  having 
respectively  committed  divers  respective  offences 
against  the  form  of  divers  statutes  of  this  realm ; 
which  said  respective  fines  and  sums  of  money, 
amounting  in  the  whole  to  50/.,  he  received  of 
the  respective  delinquents  so  by  him  convicted, 
and  had  not  paid  the  same  to  the  several  persons 
to  whom  the  same  ought  to  have  been  paid  by 
virtue  of  the  respective  statutes,  but  had  kept  and 
detained  the.  same,  &c,  To  this  there  was  a  special 
demurrer,  and  the  court  were  clearly  of  opinion  that 
the  plea  was  bad,  because  it  did  not  specify  any 
one  fine  or  penalty  which  had  been  unjustly  levied. 
The  matter  alleged  in  the  justification  to  be  true, 
must  in  every  respect  correspond  with  the  imputa- 
tion complained  of  in  the  declaration.  Thus, 
where  the  defendant,  in  the  first  instance,  charges 
the  plaintiff  with  having  feloniously  stolen  one  kind 
of  chattel,  he  cannot  afterwards  justify  by  pleading 
that  the  plaintiff  had  really  been  guilty  of  stealing  a 
different  one.*  And  so  with  regard  to  every  circum- 
stance at  all  material,  the  facts  set  up  by  way  of  jus- 
tification in  the  plea  must  be  strictly  conformable 

;   Hilsrlen  v.  Mercer,  Cro.  J.  67fi- 


343 

with  the  imputation  charged  in  the  declaration.  The 
words  for  which  the  action  was  brought  charged  the 
plaintiff  with  having  been  a  bankrupt  on  the  first 
day  of  April,  in  the  17th  year  of  James  the  First. 
The  defendant  pleaded  that  the  plaintiff  was  a 
bankrupt  on  the  first  day  of  April,  in  the  15th 
year  of  the  same  reign,  and  that  therefore  he  pub- 
lished the  words;  and  the  plea  was  held  bad,* 
because  it  was  not  averred  that  the  plaintiff  conti- 
nued a  bankrupt  to  the  time  of  publishing  the  words, 
for  he  might  afterward  recover  his  credit  in  trade. 

In  Fyshf  v.  Thorowgood,  the  plaintiff  declared 
that  a  commission  issued  out  of  the  Exchequer,  di- 
rected to  the  plaintiff  and  one  J.  S.  by  force  whereof 
they  took  and  returned  the  examinations  of  several 
witnesses,  and  that  thereupon  the  defendant  said, 
that  the  plaintiff  had  returned  as  depositions  the  ex- 
amination of  divers  that  were  never  sworn."  The 
defendant  pleaded  in  bar  that  he  did  return  the  ex- 
amination of  one  J.  S.  who  was  never  sworn.  Upon 
demurrer,  it  was  adjudged  that  this  was  no  good  jus- 
tification in  bar,  because  it  is  of  one  witness  only, 
whereas  the  charge  was  in  the  plural  number. 

Where  the  offence  consists  in  the  defendant's 
having  published  the  words  in  the  course  of  a  ju- 
dicial proceeding,  the  defendant  must  show  in  his 
plea  that  he  has  been  guilty  of  no  publication  which 
the  nature  of  the  proceedings  did  not  call  for,  or  at 
least  care  must  be  taken  that  no  publication  stated 
in  the  declaration  is  left  unprotected  by  the  matter 
of  justification  pleaded.     The  defendant^  had  ex- 

*  Upsheer  v.  Betta,  Cro-  J.  578. 

:  Cro.  F.ii*.  623-  t  4  Co.  15 


344 

hibited  his  bill  in  the  Star  Chamber,  alleging  that 
the  plaintiff  was  a  procurer  of  murderers  and  pira- 
cies ;  the  declaration  alleged  the  exhibiting  the  bill, 
and  that  the  said  defendant,  at  B.,  in  the  county  of 
Salop,  said,  that  the  said  bill,  and  the  matters  con- 
tained therein,  were  true.  The  defendant,  in  his 
plea,  confessed  the  exhibiting  of  the  bill  in  the  Star 
Chamber,  and  that  he,  in  the  said  court  at  Westmin- 
ster, spoke  the  said  words  absque  hoc,  that  he  spoke 
the  words  in  the  county  of  Salop  before  or  after  the 
day  mentioned  in  the  declaration,  by  which  he  ex- 
cluded the  day  itself,  for  which  reason  the  plea  was 
held  to  be  insufficient.  But  judgment  for  the  plain- 
tiff in  this  case  was  afterward  reversed  upon  writ  of 
error  in  the  Exchequer  Chamber,  because  the  de- 
fendant had  asserted  in  the  county  of  Salop  nothing 
more  than  that  the  matters  contained  in  the  bill 
were  true  without  specifying  the  contents  of  the 
bill. 

Where  the  alleged  libel  was  contained  in  a  peti- 
tion to  the  members*  of  a  committee  of  the  House 
of  Commons,  the  plaintiff,  in  his  declaration,  alleged 
generally.that  the  defendant  had  published  the  libel 
to  "  divers  subjects,"  the  defendant  justified  the  pub- 
lication to  divers  persons  being  members  of  the  com- 
mittee, and  averred  it  to  be  the  same  publishing  of 
which  the  plaintiff  had  complained,  and  the  plea  was 
held  sufficient.  But  it  seems,  that  if  the  plaintiff,  in 
his  declaration,  allege  a  publication  to  divers  people 
by  name,  if  the  defendant  justify  the  publication  to 
some  of  them  by  name,  he  must  traverse  a  publica- 
tion to  the  rest. 

*  Lake  v.  Kin&,  1  Saund.  120 


:34;> 

And  the  reason  of  the  distinction  is,  that  in  the 
former  case,  where  a  general  publication  to  divers 
subjects  is  alleged,  the  plea  that  he  published  to 
divers  subjects  being  members  of  the  committee, 
is  consistent  with  the  declaration,  and  therefore, 
with  the  averment  that  the  publication  is  the  same. 
But  if  the  plaintiff  declare  of  a  publication  to  A. 
B.  C.  and  D.,  the  defendant,  in  justifying  a  publica- 
tion to  A.  and  B.,  cannot  aver  it  to  be  the  same  publi- 
cation with  that  complained  of,  but  should  traverse 
the  publication  to  C.  and  D.* 

Where  part  of  a  publication  consists  of  a  report 
of  judicial  proceedings  and  the  rest  of  comment, 
since  the  separation  is  necessary  for  the  purpose  of 
defence,  the  defendant  oughtf  to  take  upon  himself 
the  burthen  of  making  it,  in  order  that  the  court 
may  see  what  parts  he  means  to  justify.  And  if  he 
does  not,  the  court  will  not  allow  him  to  amend  his 
plea. 

A  plea  of  justification,  however,  may  in  such  case 
b.e  good,  with  a  general  reference  to  certain  parts 
of  the  libel  set  forth  in  the  declaration,  if  the  court 
can  see  with  certainty  what  parts  are  referred  to,  as 
if  the  reference  be  to  so  much  of  the  libel  as  im- 
putes to  the  plaintiff  such  a  crime  as  perjury,  that 
would  be  sufficient  without  repeating  all  those  parts 
again,  which  would  lead  to  prolixity  of  pleading  and 
ought  to  be  avoided 4 

By  st.  21  J.  1.  c.  16.  s.  3.  it  is  enacted,  that  all  ac- 
tions upon  the  case  (other  than  for  slander)  shall  be 

-  See  1  Will.  Saund.  133.  n.  4,  and  22.  n-  2.  t  1  Fast.  49:>,- 

J  Per  T.n  Blanc,  J-  7  E-  507, 

44 


commenced  and  sued  within  six  years  next  after  the 
cause  of  such  action  or  suits,  and  not  after.  And 
the  said  action  upon  the  case  for  words  within  two 
years  next  after  the  words  spoken,  and  not  after.  It 
has  been  held  under  this  statute,  that  the  latter  limi- 
tation applies  to  words  in  themselves  actionable, 
only,  and  not  to  cases  where*  the  special  damage  is 
the  ground  of  action,  nor  to  written  slander ;  ami  it 
has  been  decided  that  cases  of  scandalum  magnatum 
are  not  within  the  latter,  though  within  the  former 

limitation.! 

It  seems  now  fully  settled,  that  if  the  defendant 
mean  to  avail  himself  of  this  statute,  X  he  must  in  all 
cases  plead  it. 

Where  the  words  are  actionable,  the  time  be- 
gins to  reckon  from  the  speaking  of  the  words  ;  but 
where  special  damage  is  essential,  the  damage  it- 
self is  the  cause  of  action,  and  not  the  speaking  of 
the  words ;  in  such  case,  therefore,  it  seems  that 
it  would  not  be  sufficient  for  the  defendant  to  aver 
in  his  plea  that  he  did  not  speak  the  words  within 
six  years ;  because,  though  that  was  the  fact,  the 
cause  of  action,  namely,  the  special  damage,  might 
have  arisen  within  the  six  years,  he  ought  therefore 
to  plead  that  the  cause  of  action  did  not  accrue  within 
the  limited  time.  Where,  however,  the  words  are 
in  themselves  actionable,  though  special  damage  be 
laid,  since  the  words  themselves  give  rise  to  the 
action,  and  the  damage  is  mere  matter  in  aggrava- 
tion, it  would  be  sufficient  to  plead  that  the  defend- 

-    6  Bar.  Ali.  241.     Cro.  Car.  193.    Salk.  20G.     1  Sid-  95- 
t  Cro.  Car.  53  >. 

3ee  ■'  Will.  Saunrl.  63  a.  wrrerc  this  point  is  fully  discussed 


347 

ant  did  not  speak  the  words  within  the  time  limited 
by  the  statute. 

The  defendant  may,  under  the  statute,*  by  leave 
of  the  court,  join  a  general  plea  of  not  guilty  to 
the  whole  declaration,  with  a  plea  of  special  justifi- 
cation to  the  whole  or  part  ;f(l)  and  he  may  plead 
not  guilty  as  to  part  of  the  words,  and  justify  the 
speaking  of  the  residue. :{: 

*  4  Ann.  c.  16.  t  Cro-  J-  267-  I  See  Ticld>  G03»  4th  e<3- 


( 1 )  See  Lord  Churchill  v.  Html,  2  Barn.  &  Aid.  685-    Jackson  v.  Stetson  et  ux- 
15  Johns.  Rep.  48. 


CHAPTER  XXIV. 


Of  the  Replication. 

It  seldom  happens  that  any  thing  can  be  replied 
to  the  defendant's  special  plea,  except  the  general 
replication  of  de  injuria  propria,  &c.  which  puts  the 
whole  of  the  defendant's  plea  in  issue.* 

In  some  instances,  however,  a  special  replication 
becomes  necessary.  As,  where  the  original  slan- 
der imputes  to  the  plaintiff  the  commission  of  a 
specific  crime,  and  the  defendant  pleads  in  justifi- 
cation that  the  plaintiff  was  really  guilty,  the  plain- 
tiff may  reply,  that  after  his  commission  of  the 
crime,  and  before  the  speaking  of  the  words,  he  was 
pardoned. f 

And  it  has  been  said,  that  in  such  case  it  makes 
no  difference  whether  the  pardon  be  a  special  one,  of 
which  the  defendant  was  ignorant,  or  a  general  one, 
since  a  man  who  takes  upon  himself  to  spread  slan- 
der, does  it  at  his  peril ;  but  that  if  a  man  who  had 
committed  felony,  secretly  procure  a  pardon,  and 
another,  not  knowing  of  the  pardon,  cause  him  to 
be  apprehended  for  felony,  he  would  be  justified, 
because  what  he  did  was  for  the  advancement  of 
justice. 

*  1  Saund.  244.  n-  ■  "  f'u.ldingfon  v  \Vi>kir<=.  WoV   - 


349 

.But  where  the  pardon  is  general,  containing 
clauses  of  exception,  it  seems  the  plaintiff  should 
aver  that  his  case  does  not  fall  within  any  of  the 
exceptions.* 

And  even  after  a  pardon,  if  the  defendant  merely 
say  that  the  plaintiff  ivas  a  thief,  the  pardonf  will 
not  be  available. 

Where  the  plaintiff  has  stated  the  publication 
generally  to  have  been  made  to  divers  persons,  not 
naming  them,  and  the  defendant  justifies  the  pub- 
lication to  particular  persons  as  to  the  members 
of  a  committee  of  the  House  of  Commons,  if  the 
plaintiff  mean  to  insist  upon  a  publication  to  any 
others,  he  should  state  such  publication  by  way  of 
new  assignment.^ 

*  Hob.  67.  t  Hob.  82. 

f  S.ee  1  Saund.  133.  and  Chitty  on  Pleading,  603. 


CHAPTER  XXV. 


Of  the  Evidence. 

The  course  and  extent  of  the  evidence  to  be 
adduced  by  the  parties  at  the  trial  will  be  consi- 
dered in  the  same  order  with  the  pleadings  by 
which  the  evidence  is  regulated. 

First,  as  to  the  fact  of  publication. — Where  the 
action  is  for  words  spoken,  evidence  of  the  speak- 
ing before  any  third  person  will  be  sufficient, 
though  the  declaration  allege  them  to  have  been 
spoken  before  A.  B.  and  others.*  And  where  the 
words  are  in  themselves  actionable,  it  is  sufficient  to 
prove  some  of  them  which  are  actionable,  provided 
they  be  proved  precisely  as  laid.f 

If  the  words  be  spoken,  or  libel  published,  in  a 
foreign  language,  or  in  characters  not  understood 
by  those  who  hear  or  see  them,  there  is  no  publi- 
cation, since  there  is  no  communication  prejudi- 
cial to  the  plaintiff;  and  if  the  words  be  spoken, 
or  libel  addressed,  to  the  plaintiff  only,  without: 
further  publication,  no  action  is  maintainable,  since 
no  temporal  damage  can  have  accrued  from  the  de- 
fendant's act,t  but  such  a  publication  would  be  suffi- 

*  B.  N.  P.  5-  t  2  East,  434-  8  T.  K.  1?0.  supra.  309. 

J  1  Will.  Saun.  132-  n-  2-     2  Esp.  B.  226. 


851 

cient  to  sustain  an  indictment  on  the  ground  of  its 
tendency  to  produce  a  breach  of  the  peace. 

Where  a  witness,  who  heard  scandalous  words 
spoken,  has  committed  them  immediately  to  writing, 
he  may  afterward  read  the  paper  in  evidence,  if  he 
swear  that  the  words  contained  in  it  are  the  very 
words  ;*  and  if  the  words  have  not  been  written  im- 
mediately, the  witness  may  refer  to  his  minutes  to 
refresh  his  memory,  f 

In  case  of  libel,  before  any  evidence  can  be  given 
of  its  contents,  prima  facie  evidence  must  be  given 
of  a  publication  by  the  defendant.  Evidence  of 
a  publication  is  either  of  a  publication  generally, 
or  of  a  publication  in  some  particular  county  or 
place,  and  it  is  either  direct  or  indirect. 

The  publication  may  be  directly  proved,  not 
only  by  evidence  that  the  defendant,  with  his  own 
hand,  |  distributed  the  libel,  or  exposed  its  con- 
tents, (1  or  painted  an  ignominious  sign  over  the 
door  of  another,  or  took  part  in  a  procession  carry- 
ing a  representation  of  the  plaintiff  in  effigy  for  the 
purpose  of  exposing  him  to  contempt  and  ridicule, 
but  also  by  maliciously  reading  or  singing  the  con- 
tents of  the  libel  in  the  presence  of  others  ;§  all  of 

*  Per  Holt,  C.  J.     Sand  well  v.  Sand  well.     Holt,  R.  295.  f  Ibid. 

t  R.  v.  Almon,  Burr.  2689.    Seven  Bishops'  case.     St.  Tr. 
§  5  Rep.  125-    Moor,  813. 


(1)  A  person  who  has  a  copy  of  a  libellous  caricature,  is  not  liable  to  an  action 
lor  maliciously  publishing  it,  if  he  shows  it  to  another  who  requests  him  so  to  do. 
Smith  v.  Wood,  3  Campb.  323.  But  the  Governor  of  a  distant  province,  who 
delivers  a  pamphlet  to  his  At.  General,  not  for  any  public  purpose,  but  in  order 
that  he  might  peruse  it,  will  be  responsible  in  an  action,  if  the  pamphlet  be  a 
libel,  such  delivery  being;  a  sufficient  publication.  Wyatt  v-  Gore,  TI  olt's  N.  P. 
Hep.  299- 


which  tacts  are  direct  proof  of  tiie  averment  that 
the  defendant  published  the  alleged  libel.*  But  it 
frequently  happens  that  no  direct  proof  can  be  given 
of  the  defendant's  agency  in  the  publication  of 
the  libel,  and  resort  must  be  had  to  indirect  evi- 
dence, in  order  to  connect  him  with  the  libel, 
and  fix  him  with  its  publication.  The  most  usual 
and  important  piece  of  evidence  for  this  purpose 
consists  in  proving  that  the  libel  published  is  in 
the  handwriting  of  the  defendant ;  when  the  plain- 
tiff has  proved  this,  he  has  made  out  such  a  prima 
facie  case  as  entitles  him  to  have  the  contents  read 
in  evidence.f(l) 

It  was  observed  by  a  great  authority,  £  that 
"  When  a  libel  is  produced  written  in  a  man's  own 
hand,  he  is  taken  in  the  mainer,  and  that  throws  the 
proof  upon  him ;  and  if  he  cannot  produce  the  com- 
poser, the  verdict  will  be  against  him." 

The  grounds  of  this  presumption  are  plain  and 
reasonable.  A  man  is  at  liberty  to  think  or  to  write 
what  suits  him ;  at  all  events,  he  incurs  no  civil 
responsibility  unless  he  divulge  his  thoughts  to  the 

*  5  Rep.  125.     0  Rep.  59.  b-  1   Burr.  2689. 

I  Per  Holt,  C.  J.  R.  v.  Becre,  Ld.  Ray  .417.     Mullett  v.  Hulton,  4  Esp.  248. 


(1)  Where  the  defendant  sent  a  letter  containing  a  libel,  folded  up  and  un- 
sealed to  the  plaintiff,  by  the  bands  of  a  third  person,  who  delivered  it,  without 
reading  it,  or  allowing  any  other  person  to  read  it,  it  was  held  that  this  did  not 
amount  to  such  a  publication  as  would  support  an  action.  Clutterbuck  v.  Chaf- 
fers, 1  Starkic's  Rep.  471.  Lyle  v.  Clason,  1  Gaines's  Rep.  581.  But  where  it 
was  proved,  that  a  Clerk  of  the  plaintiff's  was  in  the  habit  of  opening,  when 
plaintiff  was  absent,  all  letters  not  marked  "  private,"  and  this  habit  was  known 
to  defendant,  it  was  held,  that  such  proof  was  evidence  of  the  defendant's  in- 
tention that  a  letter  containing  a  libel,  and  sent  by  him  to  the  plaintiff,  should 
be  read  by  a  third  person,  which  would  be  a  publication.  Drlacroiv  v.  Thevenot, 
2  Stnvkif?!  Rep.  63- 


■ 

temporal  prejudice  of  another  ;  but  it  seems  equally 
clear,  as  a  proposition  either  of  law  or  expediency, 
that  if  he  write  what  is  faise,  and  the  calumny  be- 
come public  to  the  detriment  of  its  object,  he  is  just 
as  responsible  for  the  effects  of  his  negligence  as  if 
he  had  been  the  voluntary  publisher  of  the  scandal ; 
if  a  man  write  libels  for  his  own  perusal,  he  must  be 
content  to  enjoy  the  satisfaction  diminished  by  the 
risk  and  peril  of  an  accidental  publication  and  its 
consequences. 

The  writing  a  libel*  does  not,  however,  in  any 
case,  amount  to  a  publication,  but  is  mere  evidence 
from  which  it  may  be  inferred  ;  what  amounts  to  a 
publication  is  a  question  of  fact,  falling  within  the 
province  of  the  jury  to  decide  ;f  and  though  proof 
that  the  libel  is  in  the  handwriting  of  the  party, 
goes  far  in  fixing  him  with  the  publication,  he  is  still 
at  liberty  to  rebut  the  strong  presumption  thus 
raised  against  him,  by  reconciling  the  fact  with  his 
own  innocence.(l) 

The  effect  of  such  proof  in  evidence  having  been 
thus  briefly  considered,  it  may  next  be  inquired 
with  what  degree  of  certainty  and  precision  the 
handwriting  of  the  party  must  be  established  before 
the  writing  can  be  read  ;  a  matter  of  evidence  most 
important  when  considered  in  its  relation  to  civil 
suits,  wherein  the  disposition  of  the  fortunes  of  indi- 

*  Lamb's  case,  9  Rep.  59.     15  Vin.  Ab.  91.     Mod.  813. 
t  Baldwin  v.  Elpbinstone,  2  W.  Black-  1037. 


(1)  Sec  what  Avas  held  to  be  a  publication  in  Rex  v.  Burdelt,  3  Bam.  &  \ 
*1  ?.  4  B^rn.  &  Air?.  95.    Bttt  tha*  was  the  case  of  an  informaHan 

45 


35I 

victuals  so  frequently  depends  upon  written  testimony, 
but  demanding  still  more  serious  attention  when  con- 
sidered as  the  medium  of  proof  in  cases  of  libel, 
forgery,  and  treason,  with  the  decision  of  which  of- 
fences the  security,  liberty,  and  life,  of  every  sub- 
ject of  the  realm,  are  intimately  connected. 

Upon  the  memorable  trial  of  the  Seven  Bishops 
for  an  alleged  libel  addressed  to  the  King,* 

Sir  Thomas  Exton  stated,  that  he  had  never  seen 
the  Archbishop  of  Canterbury  write  five  times  in 
his  life,  but  that  he  believed  one  of  the  signatures 
on  the  paper  produced  to  have  been  written  by  the 
Archbishop. 

Mr.  Brookes  stated,  that  he  believed  another 
signature  to  have  been  written  by  the  Bishop  of 
Ely;  but  upon  cross-examination,  it  turned  out  that 
his  belief  was  founded  upon  the  resemblance  which 
the  writing  bore  to  that  contained  in  a  letter  sent  to 
the  Bishop  of  Oxford,  which  letter  the  witness  con- 
cluded to  have  been  written  by  the  bishop  of  Ely 
from  having  waited  upon  him  with  the  Bishop  of  Ox- 
ford's answer,  and  communicated  with  him  on  the 
subject  of  the  original  letter. 

Upon  this  evidence,  Mr.  Justice  Powell  observed,. 
M  That's  a  strange  inference,  Mr.  Solicitor,  to  prove 
a  man's  hand." — Mr.  Attorney  General — "We 
have  more  evidence,  but  let  this  go  as  far  as  it  can." 
Mr.  Sergeant  Pemberton — "  Certainly,  my  Lord, 
you  will  never  suffer  such  a  witness  as  this."  Lord 
C.  J.Wright — "  Brother  Pemberton,  I  suppose  they 
can  prove  it  otherwise,  or  else  this  is  not  evidence." 

After  some  other  evidence  had  been  given,  Mr 


St.  T   TK.  4  *.  2.  168S. 


355 

Justice  Powell  observed,  "  Mr.  Solicitor,  I  think 
you  have  not  sufficiently  proved  this  paper  to  be 
subscribed  by  my  Lords  the  Bishops." — Mr.  Sol. 
General,  "Not  to  read  it,  Sir?"— Mr.  J.  Powell 
"No,  not  to  read  it ;  it  is  too  slender  a  proof  for 
such  a  case.  I  grant  you,  in  civil  actions  a  slender 
proof  is  sufficient  to  make  out  a  man's  hand,  by  a 
letter  to  a  tradesman  or  a  correspondent,  or  the  like ; 
but  in  criminal  cases,  (such  as  this  is,)  if  such  a 
proof  be  allowed,  where  is  the  safety  of  your  life, 
or  any  man's  life,  here  ?" — Mr.  Solicitor  General, 
"  We  tell  you  a  case  where  it  was  allowed,  and  that 
is  Mr.  Sidney's  case — a  case  of  treason,  and  printed 
by  authority.  We  tell  you  nothing  but  what  was 
done  the  other  day." 

L.  C.  J.  Wright—"  I  tell  you  what  I  say  to  it :  I 
think  truly  there  is  proof  enough  to  have  it  read,  and 
I  am  not  ashamed  nor  afraid  to  say  it,  for  I  know  I 
speak  with  the  law,  say  what  you  will  of  criminal 
cases  and  the  danger  of  people's  lives  ;  there  were 
more  danger  to  the  government,  if  such  proof  were 
not  allowed  to  be  good." — M.  J.  Powell — "I  think 
there  is  no  danger  to  the  government  at  all,  in  re- 
quiring good  proof  against  offenders." — L.  C.  J.— 
"  Here's  my  Lord  Archbishop,  and  the  Bishop  of 
St.  Asaph,  and  my  Lord  of  Ely  ;  their  hands  are 
proved,  it  is  proved  to  be  my  Lord  Archbishop's 
writing  by  Mr.  Brookes  ;  and  he  proves  my  Lord 
of  Ely's  hand  by  comparison,  and  so  my  Lord  of 
Asaph's.  Now,  Brother  Pemberton,  there's  an  an- 
swer to  your  objection.  It  being  proved  that  it  is  all 
my  Lord  Archbishop's  handwriting  ;  then  they 
fome  and  say,  «  We'll  prove  the  hands  of  the  others 


mi 

in  comparison  ;'  and  for  that  they  bring  you  wit 
nesses,  that   say,  they  have  received  letters  from, 
and  seen  their  handwriting  several  times  ;  and  com- 
paring what  they  have  seen  with  this  very  paper, 
says  the  witness,  '  I  do  believe  it  to  be  his  hand.' 
Can  there  be  a  greater  evidence,  or  a  fuller." — Mr. 
Sergeant  Pemberton — "  Admit  it  to  be  full  evidence 
against  my  Lord  Archbishop  ;  what's  that  to   the 
rest?     There's  no  evidence  against  them." — Mr. 
Justice  Allybone — "Brother  Pemberton,  as  to  the 
objection  you  make  of  comparing  hands,  it  is  an  ob- 
jection indeed,  I  do  agree ;  but  then  consider  the 
inconvenience  which  you  and  Mr.  Pollexfen  do  so 
much  insist  upon.     If  a  man  should  be  accused  by 
a  comparison  of  hands,  where  is  he  ?  he  is  in  a  most 
lamentable  case,  for  his  hand  may  be  so  counterfeit- 
ed, that  he  himself  may  not  be  able  to  distinguish 
it. — But  then  you  do  not  consider  where  you  are, 
on  the  other  side  ;  that  may  be  an  objection  in  mat- 
ters of  fact,  that  will  have  very  little  weight,  if  com- 
pared and  set  altogether.     For,  on  the  other  side, 
where  shall  the  government  be,  if  I  will  make  li- 
bels, and  traduce  the  government  with  prudence 
and  discretion,  and  all  the  secrecy  imaginable  1  I'll 
write   my  libel  by  myself,  prove  it   as  you   can. 
That's  a  fatal  blot  to  the  government,  and  therefore 
the  .eases  are  not  the  same,  nor  is  your  doctrine  to 
pass  for  current  here,  because  every  case  depends 
upon  its  own  facts.     If  I  take  upon  me  to  swear  I 
kuow  your  hand,  the  inducements  are  to  myself,  how 
I  came  to  know  it,  so  as  to  swear  it.     Knowledge 
depends  upon  circumstances  ;  I  swear  that  I  know 
you,  but   vet  I  maybe   under  a  mistake,  for  I  can 


:io-7 

have  my  knowledge  of  you  no  other  way  but  from 
the  visibility  of  you.  And  another  man  may  be  so 
much  like  you,  that  there  is  a  possibility  of  my  be- 
ing mistaken ;  but  certainly  that  is  evidence,  good 
evidence.  Now  here  are  several  gentlemen  that 
swear  as  to  my  Lord  Archbishop's  handwriting.  I 
do  agree  as  to  some  of  the  others,  that  the  evidence 
is  not  so  strong  for  what  that  man  said,  that  he  did 
believe  it  was  rather  such  a  Lord's  hand,  than  that 
which  went  before,  or  that  which  came  after,  it  is  of 
no  weight  at  ail,  and  so  some  of  the  others,  but  it 
is  positively  proved  against  my  Lord  Archbishop. 
And  one  or  two  more,  so  that  that's  enough  to  induce 
the  reading  of  this  writing." 

Mr.  Justice  Holloway — "  Good,  my  Lord,  let  me 
give  my  opinion." — L.  C.  J. — "With  all  my  heart, 
brother."— Mr.  J.  Holloway—"  My  Lord,  I  think, 
as  this  case  is,  there  ought  to  be  a  more  strong 
proof;  for  certainly  the  proof  ought  to  be  stronger 
and  more  certain  in  criminal  matters  than  in  civil 
matters.  In  civil  matters  we  do  go  upon  slight 
proof,  such  as  the  comparison  of  hands  for  proving 
a  deed,  or  a  witness's  name,  and  a  very  small  proof 
will  induce  us  to  read  it ;  but  in  criminal  matters 
we  ought  to  be  more  strict,  and  require  positive  and 
substantial  proof,  that  is  fitting  for  us  to  have  in  such 
a  case,  and  without  better  proof  I  think  it  ought  not 
to  be  read." 

L.  C.  Justice — "You  must  go  on  to  some  other 
proof,  Mr.  Solicitor,  for  the  court  is  divided  in  their 
opinions  about  this  proof." 

The  rational  observation  of  Mr.  J.  Powell,  that 
there  is  no  danger  to  government  in  requiring  good 


Sob 

proof  against  offenders,  affords  a  pleasing  relief  to 
the  disgraceful  and  pernicious  doctrine  expounded 
by  the  Chief  Justice  and  his  coadjutor  Allybone, 
which  in  plain  terms  was  an  avowal  that  in  a  state 
prosecution  the  life  and  liberty  of  the  subject  are 
of  too  little  importance  to  be  entitled  to  considera- 
tion, and  that  defendants,  therefore,  in  such  cases, 
ought  to  be  convicted  upon  evidence,  on  which, 
in  any  other  case,  they  would  be  acquitted.  When 
a  similar  distinction  was  attempted  to  be  made 
in  a  subsequent  case,*  it  was  observed  by  Lord 
Camden,  C.  J.  "  As  to  the  distinction  which  has 
been  aimed  at  between  state  offences  and  others, 
the  Common  Law  does  not  understand  that  kind  of 
reasoning." 

The  defendant!  having  committed  a  riot  upon  the 
person  of  Sir  F.  W.  in  his  own  house,  an  informa- 
tion was  filed  against  him,  and  he  produced  a  wit- 
ness to  swear  to  the  contents  of  a  letter  from  the 
prosecutor,  who  deposed  it  was  in  the  same  hand 
with  another  letter  which  had  been  admitted  to  be 
read  in  evidence.  But  Holt,  C.  J.  said,  "  In  the 
case  of  a  deed  lost  or  burnt,  we  will  admit  a  copy 
or  counterpart,  or  the  contents  to  be  given  in  evi- 
dence ;  but  we  never  permit  it,  unless  it  be  proved 
that  there  was  such  a  deed  executed.  Now  here 
the  witness  cannot  prove  this  letter  written,  for  he 
never  had  seen  the  prosecutor  write,"  and  therefore 
it  was  disallowed. 

In  Crosby's  case,t  which  was  a  trial  before  Holt, 
C.  J.  for  high  treason,  several  treasonable  papers 

*  Case  of  seizure  of  papers,  11  St-  Tr.  317 

*  II.  v.  Sir  T.  Culpepper,  Holt,  It.  293. 
12  Mod.  72.     Holt,  753.    Salk.  680- 


6bV 

were  produced,  which  the  witnesses  swore  thev 
believed  to  be  in  the  handwriting  of  the  prisoner, 
And  on  this  a  question  arose,  whether,  comparison 
of  hands  was  evidence.  And  the  court  held,  that 
though  it  was  not  sufficient  for  the  original  founda- 
tion of  an  attainder,  it  might  be  well  used  as  a  cir- 
cumstantial and  confirming  evidence,*  if  the  fact  be 
otherwise  fully  proved,  as  in  Lord  Preston's  case, 
where  it  was  proved  that  he  attempted  to  go  with 
certain  papers  into  France,  and  where  they  were 
found  upon  his  person ;  but  that  in  the  principal  case, 
since  they  were  found  elsewhere,  to  convict  on  a 
similitude  of  hands,  would  be  to  run  into  the  error 
of  Colonel  Sidney's  case.  Upon  this  trial,  the  pri- 
soner produced  a  copy  of  the  act  of  parliament  for 
the  reversal  of  Sidney's  attainder,  in  which  it  is  de- 
clared that  the  comparison  of  handsf  is  not  legal 
evidence. 

A  paper  was  produced,  said  to  be  the  hand- 
writing of  a  deceased  rector.^  In  order  to  prove 
this  fact,  the  plaintiffs  counsel  offered  to  produce 
many  of  the  returns  of  the  spiritual  courts,  of  the 
births  and  burials  made  in  the  time  of  the  rector, 
and  signed  with  his  name.  Mr.  J.  Yates  said, 
"  I  have  no  doubt  to  reject  this  evidence  as  not  ad- 
missible ;  I  do  not  know  of  any  case  where  com- 
parison of  hands  has  been  allowed  to  be  evidence 
at  all." 

In   Revett  v.  Braham,§    to  prove   that  certain 

*  See  the  cases  of  Layer,  Ld.  Preston,  Algernon  Sidney,  St.  Tr.  Buchanan, 
Dr.  Hensey,  1  Burr.  642,  and  the  trial  of  O'Connor  and  others  at  Maidstone. 

t  Lord  Ray,  40. 

i  Brookbard  v.  Woodiey,  Pcake's  C   N.  P-  90.     See  also  Mnenhcrson  1 
Tboytts,  ibid. 

§  4T.  R.  49?. 


860 

written  instructions  to  be  a  forgery,  two  clerks 
of  the  Post-Office  were  called,  who  swore,  that 
they  were  accustomed  to  inspect  franks  and  de- 
tect forgeries,  and  they  were  allowed  to  swear  to 
their  belief  that  the  writing  in  question  was  written, 
not  in  a  natural,  but  in  imitation. 

They  were  then  asked,  if  they  could  judge  whe- 
ther the  instructions  were  written  by  the  person 
who  wrote  a  memorandum,  which  was  produced. 
This  question  was  objected  to,  as  being  a  compari- 
son of  hands,  but  allowed  by  the  court.  And  Lord 
Kenyon,  C.  J.  mentioned  a  case  where  a  decipher- 
er had  given  evidence  of  the  meaning  of  letters, 
without  explaining  the  grounds  of  his  art,  and 
where  the  prisoner  was  convicted  and  executed. 

And  Buller,  J.  said,  it  was  like  the  case  of  "Wells 
harbour,"  where  persons  of  skill  were  allowed  to 
give  evidence  of  opinion. 

In  Cary  v.  Pitt,*  the  plaintiff,  to  prove  the  de- 
fendant's acceptance  of  a  bill  of  exchange,  called 
an  inspector  of  forgeries  at  the  Post-Office  to  prove 
that  he  had  frequently  seen  franks  pass  the  office 
in  the  defendant's  name,  and  that,  from  the  cha- 
racter in  which  those  franks  were  usually  written, 
he  believed  this  acceptance  to  be  the  defendant's 
handwriting. 

Lord  Kenyon  said,  "  This  is  not  admissible  evi- 
dence. The  furthest  extent  to  which  this  rule  has 
been  carried,  is  to  admit  a  person  who  has  been 
in  the  habit  of  holding  an  epistolary  correspond- 
ence with  the  party,  to  prove  the  handwriting 
from  the  knowledge  he   acquired  in  the  course  of 

*  37  G.  3.    Appej).  to  Peafce's  Law  of  Er, 


36 1 

the  correspondence.  A  case  reported  in  Fitzgib 
bon  was  the  first  in  which  such  evidence  was  ad- 
mitted. That  evidence  was  admitted  on  sound 
principles  ;  for  if,  when  letters  are  sent  directed  to 
a  particular  person  on  particular  business,  an  an- 
swer is  received  in  due  course,  it  is  a  fair  pre- 
sumption that  the  answer  was  written  by  the  per- 
son whose  handwriting  it  purports  to  be ;  but  the 
franks  sent  to  the  office  may  have  been  the  defend- 
ant's handwriting,  or  they  may  have  been  forge- 
ries as  well  as  the  present,  for  no  communication 
was  had  on  the  subject  with  the  defendant.  The 
witness  was  then  asked,  whether,  having  been 
used  to  detect  forgeries,  he  could  say,  whether 
this  was  a  genuine  handwriting  or  otherwise. 
Lord  Kenyon  said,  he  could  not  receive  this;  and 
observed,  that  though  such  evidence  was  received 
in  Revett  v.  Braham,  he  had  in  his  charge  to  the 
jury  laid  no  stress  upon  it. 

In  Da  Costa  v.  Pym,*  the  question  was,  whe- 
ther an  account  purporting  to  be  signed  by  the 
plaintiff,  was  a  forgery.  A  witness  being  asked 
the  usual  question  as  to  his  belief,  said,  that  the 
writing  produced  was  like  the  plaintffis,  but  that 
he  did  not  think  it  was  the  plaintiff's  writing,  be- 
cause he  knew  him  to  be  a  man  too  well  acquainted 
with  the  world  to  sign  such  an  account.  Erskiue 
contended  that  this  answer  was  proper,  and  that  it 
was  like  the  case  which  arose  on  the  handwriting 
of  Mr.  Mickle,  the  translator  of  the  Lusiad.  Mr. 
Caldecot,  in  that  case,  was  permitted  to  say,   he 

*    \pp.  to  Peakc'b  Law  of  F.v.     "7  <•'.  "•. 

46 


(bought  it  was  not  the  handwriting  of  Mr.  Mio 
kle,  because  he  was  a  very  correct  man  in  mak- 
ing capital  and  small  letters  where  such  were  re- 
quired, but  in  the  writing  produced  the  correct- 
ness was  not  observed.  Lord  Kenyon  said,  "  That 
is  a  very  different  case  from  the  present.  Mr.  Cal- 
decot's  observations  arose  from  the  character  of  the 
handwriting  itself;  but  this  witness  takes  into  his 
consideration  facts  entirely  unconnected  with  and 
extrinsic  from  the  handwriting.  The  jury  may 
take  all  circumstances  into  their  consideration,  but 
the  witness  should  form  his  opinion  from  the  cha- 
racter of  the  handwriting  only."  Several  notes, 
signed  by  the  plaintiff,  were  then  produced  to  the 
jury,  but  Lord  Kenyon  said,  that  the  best  rule 
was  that  laid  down  by  Mr.  J.  Yates  ;  for  if  the  jury 
were  to  look  at  the  papers,  their  judgment  would 
depend  upon  their  knowledge  of  writing,  which 
some  mischt  know  better  than  others.  It  was  best 
to  rely  on  the  evidence  of  those  well  acquainted 
with  the  plaintiffs  handwriting.  The  jury  neverthe- 
less were  permitted  to  compare  the  different  signa- 
tures. 

In  Stranger  v.  Searle,*  the  question  was,  whether 
a  written  acceptance  of  a  bill  of  exchange  was  in 
the  defendant's  handwriting.  Erskine,  for  the  de- 
fendant, offered  to  produce  other  bills  of  exchange 
accepted  by  the  defendant,  and  which  were  proved 
to  be  his  handwriting,  for  the  purpose  of  comparing 
them  with  the  bill  in  question.  This  was  objected 
to  by  the  plaintiff's  counsel,  as  it  did  not  appear 
which  was  the  real  handwriting,  those  bills,  or  the 

*   1  Esp.  N.  P.  C  14. 


3&6 

others  upon  which  the  action  was  brought,  both  being 
proved  by  witnesses,  and  that  it  was  besides  judg- 
ing from  comparison  of  hands. 

Lord  Kenyon  ruled,  that  the  witness  should  not 
be  allowed  to  decide  on  such  comparison  of  hands. 
It  was  then  said  by  the  defendant's  counsel,  that 
the  witness  had  seen  him  write  his  name  several 
times.     But  being  asked  as  to  the  circumstances,  he 
said,  that  previous  to  the  trial  the  defendant  had  so 
written  his  name  for  the  purpose  of  showing  to  the 
witness  his  true  manner  of  writing  it,  that  the  wit- 
ness might  be  able  to  distinguish  it  from   the  pre- 
tended acceptance  to  the  bill  in  question.    His  Lord- 
ship told  him,  that  he  should  not  permit  that  to  in- 
fluence  his   judgment,  since  the  defendant  might 
write  differently  from  the  common  mode  of  writing- 
Ins  name,  through  design.     The  witness  being  un- 
able, from  mere  inspection,  to  say  whether  the  ac- 
ceptance was   a  forgery  or  not,  his  testimony  was 
rejected. 

In  the  King  v.  Cator,*  in  order  to  prove  the  libel, 
on  which  the  prosecution  was  founded,  to  have  been 
written  by  the  defendant,  the  inspector  of  franks  at 
the  Post-Office  was  called.  He  stated,  that  from 
his  practice,  he  was  enabled  to  distinguish  between 
natural  and  feigned  hands  ;  and  that,  by  comparing 
two  writings,  he  thought  he  could  pronounce  whe- 
ther they  were  written  by  the  same  or  different  per- 
sons. On  seeing  the  libel,  he  swore  to  his  belief 
that  it  was  written  in  a  disguised  hand ;  but  being 
desired  to  compare  the  libel  in  question  with  another 
M'riting,  and  to  say  whether  they  had  been  written 

•   4  Esp.  R.  117 


6i)4. 

by  the  same  or  different  persons,  the  question  was 
objected  to,  and  after  it  had  been  very  fully  argued. 
Hotham,  Baron,  in  delivering  his  opinion,  ob- 
served, "  I  perfectly  agree  with  the  counsel  for  the 
prosecution,  that  there  is  no  difference,  in  point  of 
evidence,  whether  the  case  be  a  criminal  or  civil 
case,  the  same  rules  must  apply  to  both :  at  the 
same  time  it  has  been  stated,  that  one  is  more  dis- 
posed to  resist,  and  more  cautious  in  receiving 
evidence,  in  a  case  where  the  party  has  much  at 
stake,  as  in  favour  of  life. — What  is  the  evidence 
here  ?  Two  persons  have  been  called,  who,  having 
looked  at  these  libels,  have  spoken,  without  any 
doubt,  of  their  being  the  handwriting  of  the  party 
accused.  As  far  as  that  goes  there  is  no  objec- 
tion to  it.  Then  comes  the  inspector  of  franks 
from  the  Post-Office  ;  he  has  these  libels  put  into 
his  hands.  Now,  I  do  not  know  how  that  gentle- 
man could  speak  to  the  handwriting,  unless  he 
could  say  he  had  seen  the  party  write,  or  unless  he 
had  been  in  the  habit  of  correspondence  with  him, 
excepting  that  he  is  called  to  speak  as  a  man  of 
science  to  an  abstract  question.  In  that  light  he 
lias  been  called,  and  his  evidence  has  been  ad- 
mitted. He  is  shown  these  papers,  and  he  is  ask- 
ed to  look  at  them ;  and,  without  inquiring  who 
wrote  them,  or  for  what  purpose,  he  is  asked, 
'From  your  knowledge  of  handwriting  in  gene- 
ral, do  you  believe  that  writing  to  be  a  natural  or 
fictitious  hand?'  His  science,  his  knowledge,  his 
habit,  all  entitle  him  to  say,  I  am  confident  it  is  a 
feigned,  hand.     To  that  there  is  no  objection,  and 


:36a 

so  tar  as  that  goes,  I  see  no  reason  for  rejecting  that 
evidence. 

"  Then  comes  the  next  and  important  point.  It 
is  said  to  him,  *  Now  look  at  this  paper,  and  tell 
me  whether  the  same  hand  wrote  both?'  Why, 
one  cannot  help  seeing  evidently,  what  must  be 
the  consequence  ;  I  cannot  conceive  there  is  any 
thing  in  the  idea  of  a  comparison  of  hands,  if  this 
is  not  to  be  considered  as  comparison  of  hands. 
The  witness  says,  '  I  never  saw  him  write  in  my 
life.'  Why,  then,  I  collect  all  my  knowledge  of 
his  being  the  author  of  this,  by  comparing  the 
same  hand  with  that  which  other  witnesses  have 
proved  to  be  a  natural  hand  :  by  looking  at  the  two 
he  draws  his  conclusion.  It  seems  to  me,  there- 
fore, directly  and  completely  a  comparison  of  hands. 
This  question  seems  to  have  been  solemnly  de- 
cided ;  but  when  I  see  the  same  noble  and  learned 
Judge  repenting  of  what  he  had  suffered  in  the 
former  case,  and  expressly  saying  he  could  not  re- 
ceive such  evidence,  and  observing,  that  though 
such  evidence  was  received  in  Revett  and  Braham, 
he  had,  in  his  summing  up  to  the  jury,  laid  no 
stress  upon  it.  This  being  the  case,  I  cannot  con- 
sider it  so  adjudged,  but  that  I  may  exercise  my 
own  judgment  in  rejecting  it." 

From  these  cases  it  may  be  collected,  that  pre- 
vious to  the  case  of  the  Seven  Bishops,  it  was  the 
common  practice  in  civil  cases  to  admit  evidence  by 
comparison  of  hands ;  that  is,  a  witness  comparing 
the  writing  A.  with  the  writing  B.,  was  allowed  to 
swear  to  his  belief  that  they  were  both  written  by 
the  same  person. 


That  such  evidence  is  not  admissible  in  either  a 
criminal  or  civil  proceeding.  (1) 

That  there  is  now  no  difference*  between  civil 
and  criminal  proceedings,  as  to  the  admissibility  of 
written  evidence. 

That  no  person  is  competent  to  prove  handwri- 
ting, who  has  not  either  seen  the  party  write,  or  has 
been  conversant  with  his  handwriting  from  habits 
of  business ;  in  which  case,  he  must  give  his  evi- 
dence from  the  general  knowledge  of  the  character 
which  he  has  acquired.  And  that  even  where  the 
person  whose  handwriting  is  to  be  proved,  is  dead, 
other  writings  ascertained  to  have  been  his  are  not 
allowed  to  be  compared  by  the  jury  with  the  writing 
in  question.! 

That  a  person  who  is  conversant  with  the  detec- 
tion of  forgeries  is  competent  to  prove  that  any 
given  writing  is  in  a  disguised  hand,  or  is  not  the 
genuine  handwriting  of  the  person  to  whom  it  is 
attributed. 

Where  a  person  has  seen  another  write,  though 
but  once,  the  belief  founded  upon  that  knowledge  is 
evidence  to  go  to  a  jury.:}: 

A  defendant  may  be  guilty  of  publishing  a 
libel  not  only  by  distributing  copies  of  it  with  his 

*  2T.R.  201.    The  Attorney  General  v.  Le  Merchant,  B.  N.  P.  236. 

t  Where  the  antiquity  of  the  writing  makss  it  impossible  for  any  living  wit- 
ness to  swear  he  ever  saw  the  party  write,  evidence  of  similitude  has  been  re- 
ceived.    B.  N.  P. 136. 

J  Garrels  v.  Alexander,  4  Esp.  37. 


(1)  See,  however,  M'Corkle  v.  Binns,  5  Binn.  340.     And  see  the  Amtrkan 
'ases  collected  iiv  Mr.  Xcrrfs  in  the  note  (p)  to  Pealed  Evid.  p,  !.">7, 


367 

own  hand,  but  by  employing  an  agent  for  the  pur- 
pose.* 

The  declaration  generally  avers,  that  the  defend- 
ant published  and  caused  to  be  published  ;  but  the 
latter  words  seem  perfectly  unnecessary  either  in  a 
civil  or  criminal  proceeding ;  since,  in  civil  proceed- 
ings, the  principal  is  to  all  purposes  identified  with 
the  agent  emploj^ed  by  him  to  do  any  specific  act, 
and  in  treason  and  misdemeanors!  all  accessaries 
are  considered  as  principals. 

The  most  frequent  case  in  which  evidence  to  show 
a  publishing  by  an  agent,  is  adduced,  relates  to  ac- 
tions or  prosecutions  against  booksellers,  where  a 
libel  has  been  sold  by  an  apprentice  or  servant,  who 
transacts  his  master's  business.  The  effect  of  such 
evidence  appears  to  have  long  been  perfectly  settled 
by  a  number  of  decisions,  which  show  that  a  sale 
by  an  agent,  in  the  regular  course  of  business, 
amounts  to  prima  facie  proof  of  a  sale  and  publica- 
tion by  the  owner  ;  and  that  though  it  be  not  con- 
clusive as  to  a  guilty  knowledge  of  the  contents, 
yet  that  it  imposes  upon  him  the  necessity  of  rebut- 
ting the  inference  by  evidence  to  the  contrary.  | 

It  has  been  said,  "  that  it  is  not  material  whether 
the  person  who  disperses  libels  is  acquainted  with 
their  contents  or  otherwise,  for  that  nothing  would 
be  more  easy  than  to  publish  the  most  virulent  pa- 
pers with  the  greatest  security,  if  the  concealing  the 
purport  of  them  from  an  illiterate  publisher,  would 
make  him  safe  in  dispersing  them.  And  that,  on 
this  foundation,  it  has  been  constantly  ruled  of  late, 

*  7  East,  65.     Bac.  Ab.  tit.  Libel,  458.  t  1  Hal,  P.  G.  613. 

,  Tlac.  Ab.  tit.  Libel,  458. 


368 

that  the  buying  of  a  book  or  paper  containing  libel- 
lous matter,  at  a  bookseller's  shop,  is  sufficient  evi- 
dence to  charge  the  master  with  the  publication, 
though  it  does  not  appear  that  he  knew  of  any  such 
book  being  there,  or  what  the  contents  thereof  were, 
and  that  it  will  not  be  presumed  that  they  were 
brought  there  by  a  stranger  ;  but  the  master,  if  he 
suggests  any  thing  of  this  kind  in  his  excuse,  must 
prove  it.* 

It  is  to  be  recollected,  that  the  only  question  at 
present  considered  is,  how  the  libel  and  its  publica- 
tion must  be  connected  with  the  defendant  by  evi- 
dence, to  admit  the  reading  its  contents  ;  and  it  ap- 
pears perfectly  established,  that  the  sale  by  his  ser- 
vant, in  the  ordinary  course  of  his  employment,  is  a 
sufficient  preparation  for  such  admission,  though 
undoubtedly  it  is  a  mere  presumption  which  the 
master  is  competent  to  cut  down,  if  he  can,  by  op- 
posite proof. 

An  information!  was  moved  for  against  the  de- 
fendant for  selling  and  publishing  a  libel  against  one 
Chambers,  and  it  was  insisted  upon  for  the  defend- 
ant, that  her  servant  took  the  libel  into  the  shop 
without  her  knowledge.  But  by  the  court,  this  is 
no  excuse  ;  for  a  master  shall  answer  for  his  servant, 
and  the  law  presumes  him  to  be  acquainted  with 
what  his  servant  does. 

And  L.  C.  J.  Raymond  said,  that  it  had  been 
ruled,  that  where  a  master  lives  out  of  town,  and  his 
trade  is  carried  on  by  his  servant,  the  master  shall 

*  Sec  Bac.  Ab.  tit.  Libel,  453.  Wood's  Inst.  445,  2  Sess.  Cass.  33.  12 
Yin.  Ab.  229.  Fitzgib.  47.  Haw.  V.  C.  c.  73.  s.  10.  Barnard,  K.  B.  308. 
Plankett  v.  Cobbett,  5  Esp.  1S6. 

t  R.  v.  Dodd,  1724.     2  Sess.  Cas»  33-     D-  T.L-  27. 


869 

be  charged  with  his  servant's  publishing  a  libel  in 
his  absence. 

In  the  case  of  the  King  v.  Nutt,*  the  defendant 
was  indicted  for  being  the  publisher  of  a  treasona- 
ble libeL  It  was  proved  that  she  kept  a  pamphlet 
shop,  where  the  libel  was  sold ;  no  evidence  was 
offered  to  prove  her  knowing  of  its  being  bought 
or  sold  out.  The  defendant  proved  that  her  house, 
where  she  lived,  was  a  mile  off  from  the  shop,  and 
that  she  had  been  bed-ridden  there  for  a  long  time. 
The  Chief  Justice  held,  that  the  master  of  a  shop  is 
answerable  for  whatever  books  are  sold  there.  (1 ) 

This  liability  of  booksellers  was  fully  discussed 
in  the  case  of  the  King  v.  Almon.f  The  defendant 
had  been  convicted  of  publishing  a  libel  (one  of 
Junius's  letters)  in  one  of  the  magazines  called  the 
London  Museum,  which  was  bought  at  his  shop,  and 
professed  to  be  printed  for  him.  (2) 

The  defendant  was  found  guilty  on  proof  that  the 
libel  in  question  had  been  sold  in  his  shop.  A  mo- 
tion was  afterward  made  for  a  new  trial  on  an  affi- 
davit, the  principal  bearing  of  which  was,  that  the 
libel  had  been  sent  to  his  shop,  and  sold  there  by  a 
boy  without  his  knowledge,  privity,  or  approbation. 
But  the  court  were  of  opinion,  that  none  of  the 

*  Barnard,  K.  B.  306.    Fitzgib.  47.    Dig.  L.  L.  27.        t  5  Burr.  2689- 


(1)  The  receipt  of  payment  for  newspapers,  (which  had  been  distributed,)  bj 
ihe  printer's  Clerk,  held  evidence  of  publication.  Respub.  v.  Davis,  3  Yeates, 
129.  But  where  a  printing  press  and  newspaper  establishment  were  assigned  to 
a  person  merely  as  a  security  for  a  debt,  and  the  press  remained  in  the  sole  pos- 
session and  management  of  the  assignor,  this  was  held  not  to  be  such  an  owner- 
ship in  the  person  holding  the  security  or  lieu,  as  would  render  him  liable  to  ai 
action  as  the  proprietor,  rfndres  v.  Wells,  7  .Tch".i  R^n  2  10 
■'•'■  s^e  vest,  note  [26,! 

V? 


370 

matters  on  behalf  of  the  defendant,  nor  all  of  them 
added  together,  were  reasons  for  granting  a  new 
trial,  whatever  weight  they  might  have  in  extenua- 
tion of  his  offence,  and  in  consequence  lessening  his 
punishment ;  for  they  were  extremely  clear  and 
unanimous  in  opinion,  that  this  libel  being  bought 
in  the  shop  of  a  common  known  bookseller  and 
publisher,  importing  by  its  title-page  to  be  printed 
for  him,  was  a  sufficient  prima  fade  evidence  of  its 
being  published  by  him  ;  not  indeed  conclusive,  be- 
cause he  might  have  contradicted  it,  if  the  facts 
would  have  borne  it,  by  contrary  evidence. 

In  the  above  case,  Lord  Mansfield  observed,  "  A 
libel  cannot  be  read  against  a  defendant  before  it 
has  been  proved  upon  him.  This  must,  however, 
be  understood,  of  such  prima  facie  proof  of  publi- 
cation as  would  be  sufficient  to  be  left  to  a  jury;  for 
no  evidence  on  the  part  of  the  plaintiff,  or  in  sup- 
port of  a  prosecution,  can  in  strictness  amount  to 
proof,  since  the  evidence  of  any  witnesses,  is  always 
liable  to  be  rebutted  by  opposite  testimony,  and 
must  after  all  depend  for  its  effect  upon  the  credit 
given  by  the  jury  to  the  character  of  the  witnesses, 
and  the  circumstances  under  which  such  evidence 
is  given."* 

If  one  procure  another  to  publish  a  libel,  tho 
procurer  is  guilt}'  of  the  publication  wherever  it 
shall  be  made ;  and  the  publisher  is  a  competent 
witness  to  prove  that  he  was  employed  to  publish 
the  libel,  and  did  in  consequence  publish  it.f  (1) 

*  Sec  the  King  v.  Johnson,  7  East,  65-  See  also  the  King  v.  Dod,  2  Ses.  c. 
S3.    Bac.  Ab.  tit.  Libel,  497-     Wood's  Ins.  44 j.  f  Ibid. 

(1)  But  in  an  action  for  a  libel  contained  in  a  letter,  addressed  to  a  third 
person,  proof  ilint  it  wa?  writteaby  the  defendant's  daughter,  who  was  authorized 


37 1 

.Next,  oi  the  evidence  to  prove  n  publication  tna 
particular  county  or  place. 

It  seldom  is  material  in  a  civil  action,  to  prove  the 
libel  to  have  been  published  in  any  particular  county ; 
though,  in  a  criminal  proceeding,  which  is  in  its  nature 
local,  the  offence  must  be  proved  to  have  been  com- 
mitted within  the  county  in  which  the  indictment  has 
been  found.  But  since,  in  a  civil  action,  it  may  be- 
come necessa^  to  prove  a  local  publication,  it  will 
not  be  irrelevant  to  consider  in  this  place  the  evi- 
dence by  which  such  a  publication  ought  to  be  sup- 
ported. In  general,  where  a  publication  has  once 
been  sanctioned,  the  author  of  it  is  guilty  of  such 
publication  in  whatever  county  the  libel  shall  in  con- 
sequence be  published.* 

A  general  confession  that  the  defendant  was  the 
writer  of  a  libel,  does  not  amount  to  a  confession 
that  the  libel  was  published  at  all,  even  though  it 
should  afterward  be  found  to  have  been  published 
in  a  particular  county,  still  less  does  it  admit  the 
publication  in  such  county. f 

In  the  case  of  the  seven  Bishops,  after  the  proof 
which  had  been  offered  by  comparison  of  hands  had 
been  rejected,  the  court  being  divided  in  opinion, 
it  was  proved  that  the  defendants  had,  with  much 
unwillingness,  confessed  before  the  king  and  coun- 

*  B.  N.  P.  6.     7  East,  R.  v.  Johnson, 
t  Seven  Bishops'  case,  St.  Tr.  4  J.  2. 


(o  make  out  his  bills  and  write  his  general  letters  of  business,  is  not  sufficient 
evidence  of  a  publication  by  defendant,  unless  it  be  shown  that  such  libel  was 
written  with  the  knowledge  of,  or  by  procurement  of  the  defendant ;  nor  could 
the  daughter  be  called  to  prove  by  whose  direction  such  letter  was  written. 
Harding  v.  Greening,  1  Moore,  477.     S.  C.  8  Taunt   42. 


&72 

cil  at  Whitehall,  that  the  signatures  subscribed  tv 
the  petition  had  been  written  by  them.  It  was  also 
proved  that  the  petition  had  come  into  the  king's 
hands  at  Middlesex,  but  by  what  agency  did  not  ap- 
pear. The  reading  of  the  petition  upon  this  evi- 
dence was  at  first  opposed  by  the  defendants'  coun- 
sel, upon  the  ground  that  no  act  of  publication  had 
been  proved  in  Middlesex.  It  was,  however,  after- 
ward consented  to,  on  an  understanding  that  the 
point  should  be  reserved. 

Had  the  evidence  rested  here,  it  seems  the  Chief 
Justice  would,  though  against  his  inclination,  have 
yielded  to  the  force  of  this  objection,  even  though 
it  appeared  upon  the  face  of  the  petition  that  the 
intention  of  the  petitioners  was  to  present  it  to  the 
king,  and  it  had  before  been  proved  to  have  reached 
him. 

When  a  libel  has  been  sent  by  the  post,  it  seems 
that  the  defendant  is  guilty  of  a  publication  in  any 
county  into  which  the  libel  shall  be  carried.*  But 
the  post-mark,  however,  upon  a  letter,  is  not  evi- 
dence of  a  publication  in  the  county  from  which 
such  letter  purports,  by  its  post-mark,  to  have  been 
sent,  for  it  may  have  been  forged.f  It  seems,  how- 
ever, that  in  some  instances  the  post-mark  may 
be  evidence  when  corroborated  by  other  circum- 
stances.; 

In  the  case  of  the  King  v.  the  Hon.  Robert 
Johnson, §  the  defendant  was  indicted  in  the  coun- 
ty of  Middlesex  for  having  published  a  libel  in 
Cobbett's  Weekly  Register.     Mr.  Cobbett,  the  pub- 

*  R.  v.  Watson,  1  Camp.  214.    4  St.  Tr.  353.  t  Ibid. 

t  R.  v.  Johnson.  7  East,  65.  §  7  East,  65 


ST6 

iisher  of  the  Register,  proved  that  he  had  received 
an  anonymous  letter  (the  original  of  which  he 
believed  to  be  destroyed)  in  the  same  handwriting 
as  the  libels  which  he  afterward  received;  in 
which  letter  (parol  evidence  of  which  was  admit- 
ted to  be  given  for  this  purpose)  the  writer  in- 
quired whether  it  would  be  agreeable  to  Mr.  Cob- 
bett  to  receive  for  publication  in  his  Register,  cer- 
tain information  of  public  affairs  in  Ireland,  and  if 
it  were,  he  was  desired  to  say  to  whom  such  in- 
formation was  to  be  directed.  In  consequence  of 
the  receipt  of  this  letter,  which  was  published  in 
the  Register,  Mr.  Cobbett,  through  the  medium  of 
the  same  Register,  requested  the  promised  informa- 
tion to  be  directed  to  Mr.  Budd,  No.  100,  Pall 
Mall,  whose  shop  was  at  that  time  used  by  Mr. 
Cobbett  for  the  publication  of  his  Register,  where 
letters  of  communication  were  addressed  to  him, 
and  from  whence  he  received  them,  his  own  house 
being  in  Duke-street,  Westminster.  After  this  in- 
timation, Mr.  Cobbett  received  in  due  time  two  se- 
veral letters,  containing  different  parts  of  the  libels 
in  question,  both  in  the  same  handwriting  with 
the  letter  previously  received.  Both  the  letters 
came  under  cover,  but  the  covers  were  believed 
either  to  be  destroyed  or  lost,  having  been  thrown 
aside  as  useless  ;  and  therefore  parol  evidence  was 
admitted,  to  prove  that  they  had  the  Irish  post- 
mark upon  them,  and  were  directed  in  the  man- 
ner pointed  out  in  the  Register.  The  first  of  the 
letters,  dated  29th  October,  1803,  was  received, 
and  the  cover  opened  by  Mr.  Budd,  who  there- 
upon sent  it,  together  with  the  cover  opened,  to 


374 

-Mr.  (jobbett  in  Duke-street,  by  a  person  in  the 
office  whom  the  witness  did  not  recollect.  But 
in  consequence  of  his  desiring  Mr.  Budd  not  to 
open  any  other  letters  so  directed,  Mr.  Cobbett  re- 
ceived the  next  letter,  which  came  to  Mr.  Budd, 
by  a  subsequent  post,  unopened.  Several  wit- 
nesses were  then  called,  who,  upon  examination 
of  the  letters  so  received  by  Mr.  Cobbett,  swore 
to  their  belief  of  their  being  the  handwriting  of 
the  defendant,  who,  at  the  period  in  question,  was 
an  Irish  Judge.  It  was  then  proposed  by  the  at- 
torney-general that  the  letters  containing  the  libels 
should  be  read,  which  he  said  contained  internal 
evidence  that  they  were  written  and  sent  by  the 
writer  to  Mr.  Cobbett,  for  the  purpose  of  being 
published  in  his  Register. 

But  the  reading  was  objected  to,  upon  the 
ground  that  there  was  no  evidence  to  go  to  the 
jury,  of  a  publication  by  the  defendant  in  Middle- 
sex. That,  admitting  the  libels  to  be  in  the  hand- 
writing of  the  defendant,  there  was  no  evidence 
to  show  that  he  had  sent  them  into  Middlesex 
to  be  there  published,  nor  any  privity  established 
between  himself  and  Cobbett.  The  case  of  the 
seven  Bishops  was  quoted  as  in  point;  and  it 
was  contended,  that  if  any  publication,  proved  to 
have  taken  place  in  Middlesex,  was  sufficient 
ground  for  the  reading  of  the  libel  there,  it  ought 
to  have  been  read  in  that  case,  since  the  petition, 
which  had  been  acknowledged  to  have  been  signed 
by  them,  was  found  in  the  king's  hands  in  Middle- 
sex ;  and  that  the  only  link  there  wanting  was,  that 
it  came  there  by  the  agency  of  the  Bishops,  which 


875 

was  holden  not  be  supplied  by  tlie  evidence  ol 
tiieir  acknowledgment  of  their  handwriting  in 
that  county.  The  trial  was  at  bar,  before  Lord 
Ellenborough,  C.  J.  and  Grose,  Lawrence,  and  Le 
Blanc,  Justices. 

But  it  was  answered  by  the  court,  that  the  case 
of  the  seven  Bishops  was  irrelevant ;  that  it  had 
been  soundly  ruled  in  their  case,  that  the  confes- 
sion of  their  signatures,  extorted  from  them  as  it 
was,  did  not  amount  to  evidence  of  a  publication 
in  Middlesex ;  that  in  the  present  case,  a  publica- 
tion in  Middlesex  had  been  proved  by  Mr.  Cobbett, 
and  that  the  notification  by  letter  to  him,  that  he 
should  receive  certain  papers  for  the  purpose  of 
publication,  the  public  answer  in  the  Register  ap- 
pointing the  mode  of  sending,  and  the  consequent 
receipt  of  papers  by  Cobbett,  through  that  chan- 
nel, answering  the  description  of  those  proposed  to 
be  sent,  and  proved  to  have  been  written  by  the 
defendant,  afforded  evidence  to  go  to  a  jury  to  de- 
cide, whether  the  publication  in  Middlesex  had 
not  been  made  through  the  defendant's  procure- 
ment. 

Besides  the  general  proofs  already  mentioned, 
some  still  remain  relating  peculiarly  to  the  publish- 
ers and  proprietors  of  newspapers.  In  the  case  of 
the  King  v.  Topham,*  the  defendant  was  indicted 
for  publishing,  in  a  certain  newspaper  called  the 
World,  a  libel  reflecting  on  the  memory  of  the 
late  Earl  Cowper.  To  establish  the  fact  of  pub- 
lication, it  was  proved  that  the  paper  in  question 
was  sold   at  the  defendant's   oiYico ;  that  the  dc 

•  i  r  r  121 


376 

iendant,  as  proprietor  of  the  paper,  had  given  a 
bond  to  the  stamp-office  pursuant  to  the  29th 
G.  3.  c,  50.  s.  10.  for  securing  the  duties  on  the 
advertisements ;  and  that  he  had  from  time  to 
time  applied  to  the  Stamp-office  respecting  the 
duties.  The  jury,  on  this  evidence,  found  the  de- 
fendant guilty ;  and  upon  a  motion  for  a  new  trial, 
this  was  held  by  the  court  to  be  strong  evidence  of 
publication^  1) 

By  38  G.  3.  c.  SS.  which  is  entitled,  "  An  Act 
for  preventing  the  mischiefs  arising  from  the  print- 
ing or  publishing  newspapers  and  papers  of  a  like 
nature,  by  persons  not  known,  and  for  regulating 
the  printing  and  publication  of  such  papers  in  other 
respects,"  it  is  enacted, 

By  Sect.  1.  That  no  person  shall  print  or  publish 
any  newspaper  until  certain  affidavits  or  affirmations 
shall  have  been  delivered  to  the  commissioners  of 
stamps  or  their  officers. 

By  Sect.  2.  These  must  contain  a  true  descrip- 
tion of  the  proprietors,  or  of  two  of  them,  and  of 
their  places  of  abode,  of  their  shares  in  the  paper, 
and  the  house  wherein  it  is  intended  to  be  printed, 
and  of  its  title. 

By  Sect.  5.  The  affidavit  or  affirmation  (in  case 
the  party  be  a  Quaker)  must  be  in  writing,  signed 


(1)  In  Respub.  v.  Davis,  3  Yeates,  128,  the  receipt  of  payment  for  a  newspa- 
per by  the  Clerk  of  the  printer  was  held  evidence  of  the  publication  of  a  LibeJ. 
So  where  a  witness  swore  that  he  was  a  printer,  and  had  been  in  the  office  of 
the  defendant  where  a  paper  called  The.  Ontario  Messenger  was  printed,  and  he 
saw  it  printed  there,  and  the  paper  produced  was,  he  believed,  printed  with  the 
ivpes  used  in  the  defendant's  office  ;  this  was  held  to  be  prima  facie  evidence  of 
>.he  publication.  Sonlhivicl;  :■  Ify&ens,  10  Johns,  P"p.  443.  See  M'Gofkfe  \ 
Bfrens,  5  Bic'i    340 


\'>y  the  parties,  and*  sworn  to  or  affirmed  before  the 
commissioners,  or  an  officer  appointed  by  them. 

By  Sect.  7.  A  penalty  of  100/.  is  imposed  upon 
such  as  shall  print,  publish,  vend,  or  deliver  any 
newspaper,  without  making  such  affidavit  or  affirma- 
tion. 

By  Sect.  9.  It  is  enacted  that,  all* such  affidavits 
and  affirmations  as  aforesaid,  shall  be  filed,  and  kept 
in  such  manner  as  the  said  commissioners  shall  di- 
rect, and  the  same,  or  copies  thereof,  certified  to  be 
true  copies  as  hereinafter  is  mentioned,  shall  res- 
pectively in  all  proceedings,  civil  and  criminal,  touch- 
ing any  newspaper  or  other  such  paper  as  aforesaid, 
which  shall  be  mentioned  in  any  such  affidavits  or 
affirmations,  or  touching  any  publication,  matter,  or 
thing  contained  in  any  such  newspaper  or  other  pa- 
per, be  received  and  admitted  as  conclusive  evidence 
of  the  truth  of  all  such  matters  set  forth  in  such  affi- 
davits or  affirmations  as  are  hereby  required  to  be 
therein  set  forth  against  every  person  who  shall  have 
signed,  sworn,  or  affirmed  such  affidavits  or  anima- 
tions, and  shall  also  be  received  and  admitted  in  like- 
manner,  as  sufficient  evidence  of  the  truth  of  all  such 
matters  against  all  and  every  person  who  shall  not 
have  signed  or  sworn,  or  affirmed  the  same,  but  who 
shall  be  therein  mentioned  to  be  a  proprietor, 
printer,  or  publisher  of  such  newspaper  or  other 
paper,  unless  the  contrary  shall  be  satisfactorily 
proved."  The  section  then  contains  an  exception 
in  favour  of  such  as  have,  before  the  publication  of 
the  paper  in  question,  delivered  in  to  the  commis- 
sioners an  affidavit,  stating  that  they  have  ceased  to 
be  the  printers,  &c.  of  such  paper. 

48 


37§ 

By  the  10th  section,  it  is  enacted,  that  in  sonu 
part  of  every  newspaper,  &c.  shall  be  printed  the 
names,  additions,  and  places  of  abode  of  the  printers, 
&c.  and  the  place  where  the  same  is  printed,  under 
a  penalty  of  100/. 

By  Sect.  11.  It  is  further  enacted,  that  it  shall  not 
be  necessary,  after  any  such  affidavit  or  affirmation, 
or  a  certified  copy  thereof,  shall  have  been  produced 
in  evidence  as  aforesaid  against  the  persons  who 
signed  and  made  such  affidavit,  or  are  therein  named, 
according  to  this  act,  or  any  of  them,  and  after  a 
newspaper,  or  other  such  paper  as  aforesaid,  shall 
be  produced  in  evidence,  intituled  in  the  same  man- 
ner as  the  newspaper,  or  other  paper  mentioned  in 
such  affidavit  or  copy  is  intituled,  and  wherein  the 
name  or  names  of  the  printer  and  publisher,  or 
printers  and  publishers,  and  place  of  printing,  shall 
be  the  same  as  the  name  or  names  of  the  printer  and 
publisher,  or  printers  and  publishers,  and  the  place 
of  printing  mentioned  in  such  affidavit  or  affirmation, 
for  the  plaintiff,  informant,  or  prosecutor,  or  person 
seeking  to  recover  any  of  the  penalties  given  by  this 
act,  to  prove  that  the  newspaper  or  papers  to  which 
such  trial  relates,  was  purchased  at  any  house,  shop, 
or  office,  belonging  to  or  occupied  by  the  defendant 
or  defendants,  or  any  of  them,  or  by  his  or  their  ser- 
vants or  workmen,  or  where  he  or  they,  by  them- 
selves or  their  servants  or  workmen,  usually  carry 
on  the  business  of  printing  or  publishing  such  paper, 
or  where  the  same  is  usually  sold. 

By  Sect.  13.  It  is  enacted,  that  a  certified  copy  of 
such  affidavit  or  affirmation  shall  be  delivered  bv  the 


$7±) 

commissioners  to  the  person  requiring  it,  upon  pa)  • 
ment  of  one  shilling. 

By  Sect.  14.  In  order  to  prevent  the  inconvenience 
which  might  result  from  requiring  the  personal  at- 
tendance of  the  commissioners,  it  is  enacted,  that  a 
certificated  copy  of  any  affidavit  or  affirmation 
proved  to  be  signed  by  the  officer  who  has  the  cus- 
tody of  the  original,  shall  be  received  in  evidence  as 
sufficient  proof  of  such  affidavit  or  affirmation,  and 
that  the  same  was  duly  sworn  or  affirmed,  and  of 
the  contents  thereof ;  and  that  such  copies,  so  pro- 
duced and  certified,  shall  also  be  received  as  evidence 
that  the  affidavit  or  affirmation,  of  which  they  pur- 
port to  be  copies,  have  been  sworn  or  affirmed  ac- 
cording to  this  act ;  and  shall  have  the  same  effect 
in  evidence  as  the  originals  would  have  had,  in  case 
they  had  been  produced  and  proved  to  have  been 
duly  so  certified,  sworn  and  affirmed,  by  the  person 
appearing  by  such  copy  to  have  sworn  or  affirmed 
the  same  as  aforesaid. 

By  the  17th  section  it  is  enacted,  that  every  printer 
or  publisher  of  every  newspaper  or  other  such  paper, 
shall  within  six  days  deliver  to  the  commissioners, 
or  their  officer,  one  of  the  papers  so  published, 
signed  by  the  printer  or  publisher  in  his  handwri- 
ting, with  his  name  and  place  of  abode ;  and  that 
the  same  shall  be  kept  by  the  commissioners  or  their 
officer,  under  a  penalty,  in  case  of  neglect  by  such 
printer  or  publisher,  of  100/.  And  that  upon  appli- 
cation by  any  person  to  the  commissioners  or  their 
officer,  to  have  such  paper  produced  in  evidence  in 
any  proceeding,  whether  civil  or  criminal,  such  com- 
missioners or  officer  shall,  at  the  expense  of  the  ap- 


plicant,  at  any  time  within  two  years  from  the  publi- 
cation, either  cause  the  same  to  be  produced  in  the 
court,  and  at  the  time  when  the  same  is  required  to 
be  produced,  or  shall  deliver  the  same  to  the  appli- 
cant, on  his  giving  reasonable  security,  at  his  own 
expense,  for  returning  the  same.  And  that,  in  case 
such  commissioners  or  their  officer  cannot,  by  rea- 
son of  a  previous  application,  comply  with  the  terms 
of  a  subsequent  one,  they  shall  comply  with  such 
subsequent  one  as  soon  afterward  as  they  shall  be 
able  so  to  do. 

By  the  28th  section,  it  is  enacted,  that  if  a  bill 
be  filed  in  any  court,  for  a  discovery  of  the  names 
of  any  persons  concerned  in  the  property  of,  or  as 
printers,  editors,  or  publishers  of,  or  otherwise  in 
any  newspaper,  or  other  such  paper,  or  of  any 
matters  relating  to  the  printing  and  publishing,  in 
order  to  enable  the  party  more  effectually  to  bring 
or  carry  on  any  suit  or  action  for  damages  alleged 
to  have  been  sustained  by  reason  of  any  slanderous 
or  libellous  matter  contained  in  such  newspaper  or 
other  paper  as  aforesaid  respecting  such  party,  it 
shall  not  be  lawful  for  the  defendants  to  plead 
or  demur  to  such  bill,  but  they  shall  be  compellable 
to  make  the  discovery  thereby  required ;  provided 
that  such  discovery  shall  not  be  made  use  of  as  evi- 
dence or  otherwise,  in  any  proceeding  against  the 
defendants,  save  only  in  that  proceeding  in  which 
the  discovery  is  made. 

Hart  and  White,  the  printer  and  proprietor  of  a 
newspaper  called  "  The  Independent  Whig,"*  were 

*   10  East,  94. 


381  • 

indicted  in  London  for  a  libel  published  in   that 

PaPer-  ,  '". 

The   prosecutor  gave  in  evidence  the  affidavits 

sworn  by  the  defendants,  with  their  hands-writing 
thereto,  and  delivered  to  the  commissioners,  con- 
taining all  the  particulars  required  by  the  act,  and 
among  the  rest,  the  description  of  the  place 
where  the  newspaper  was  printed,  which  was  in 
London.  An  officer  from  the  Stamp-Office,  (which 
is  not  in  London)  produced  a  newspaper,  without 
stating  from  whence  it  came,  containing  the  libel 
in  question,  which  newspaper  answered  the  whole 
description  contained  in  the  affidavit,  and  stated, 
at  the  foot  of  it,  that  it  was  printed  at  No.  33, 
Warwick-lane,  London ;  and  it  was  also  proved, 
that  the  defendant's  printing-house  was  at  the  same 
place. 

The   defendants   were   found  guilty,  but  a  new 
trial  was  afterwards  moved  for,  on  the  ground  that 
the  evidence  at  the  trial  was  insufficient  to  prove 
a    publication  in  London ;  that  the    9th   clause  of 
the  act  cited   made  the   affidavit  evidence  of  no- 
thing more    than  the  matters    contained    therein, 
which,  by  reference  to  the  second  clause,   are  the 
names,  additions,  descriptions,  and  places  of  abode 
of  the  printers,    publishers,  and   proprietors,   the 
description  of  the  printing-house,  and  title  of  the 
paper ;  that  it  was  still  necessary  to  prove  a  publi- 
cation in  the  county  where  the  trial  was  had,  since 
the  paper,  though  printed   in  one  place,  may  be 
published  in  another :  that  the  1 1th  section  is  con- 
fined to  actions  or  informations  for  penalties  given 
by  the  act ;  that  the  object  of  the  17th  clause  was 


Jb2 

to  fix  the  printing  and  publication  upon  the  parties- 
described  in  the  Stamp-Office  documents,  by  com- 
paring the  newspaper  so  delivered  with  any  other 
of  the  same  impression  published  in  the  county 
where  me  trial  is  had ;  buA  that  a  publication  to 
the  commissioners  under  the  direction  of  the  act 
could  not  be  considered  as  a  libellous  and  guilty 
publication,  without  any  other  evidence  of  publi- 
cation in  the  same  place ;  that  besides,  the  news- 
paper was  only  produced  by  an  officer  from  the 
Stamp-Office,  without  any  proof  how  it  came  there, 
or  from  whom  it  was  received. 

The  court  were  satisfied  that  the  evidence  of 
a  publication  in  London  was  sufficient,*  on  the 
grounds  that  "  the  act  requiring  an  affidavit  to 
be  made  by  the  printers,  proprietors,  and  pub- 
lishers, specifying  their  names  and  places  of  abode, 
&c.  makes  the  affidavit  conclusive  as  to  the  several 
facts  contained  in  it,  as  against  the  persons  sign- 
ing it,  unless  they  ceased  to  be  printers  before 
the  publication  complained  of.  That  had  the  act 
stopped  here,  the  affidavits  would  be  conclusive  that 
one  of  the  defendants  was  the  printer  and  publish- 
er, and  the  other  the  proprietor  of  the  paper  so  inti- 
tuled ;  and  that  it  was  printed  at  the  place  therein 
described,  which  is  within  the  city  of  London,  that 
would  have  put  them  upon  showing  that  the  paper 
produced  was  a  fabrication.  But  the  11th  section 
goes  further,  and  enacts,  that  proof  of  the  af- 
fidavit shall  render  it  unnecessary  to  prove  that  a 
newspaper  corresponding  in  title,  &c.  with  the  one 
described  in  the  affidavit,  and  to   which  the  trial 

'   T>nivl  Ellcnborough.  C.  J.  gave  no  opinion. 


SS3 

relates,  was  purchased  at  any  house,  &c.  belonging 
to  or  occupied  by  the  defendants,  their  servants,  &c. 
or  where  they  usually  carry  on  the  business  of  print- 
ing or  publishing  such  paper,  or  where  the  same  is 
usually  sold. 

That  at  all  events,  the  11th  section  superseded 
the  necessity  of  further  proof,  since  the  words  of 
it,  plaintiff,  informer,  prosecutor,  &c.  were  general, 
and  not  confined  to  informants  seeking  to  recover 
penalties. 

Where  the  defendant,  having  exhibited  a  libel- 
lous paper,  retains  it  in  his  possession,  if,  after  no- 
tice to  produce  it,  he  refuse,  parol  evidence  may 
be  given  of  its  contents,  and  that  even  in  cases  of 
treason  ;*  and  a  printer  may  prove  that  he  received 
a  libel  in  manuscript  from  the  defendant,  and  return- 
ed it  to  him.f 

To  prove |  the  publication  of  a  newspaper,  an 
unstamped  copy  may  be  given  in  evidence,  and  the 
witness  may  swear,  that  similar  papers  were  pub- 
lished. 

*  See  Le  Merchant's  case,  2  T.  K.  201.    Layer's  case,  6  St.  T.  229. 
R.  v.  Pearce,  Peake's  Cas-  75.  1  Ihkl. 


S8'4 


CHAPTER  XXVI. 


Of  Evidence  relating  to  Special  Character. 
Malice,  fyc. 

Where  the  plaintiff  has  averred  that  the  scandal 
affects  him  in  some  particular  character,  he  is  in  ge- 
neral bound  to  prove  that  such  character  belonged 
to  him  at  the  time  of  the  publication. 

The  character  is  described  in  the  declaration, 
either  particularly  or  generally. 

In  the  former  case,  it  is  incumbent  on  the  plain- 
tiff to  prove  such  description,  with  all  its  circum- 
stances, though  a  more  general  proof,  under  a  more 
general  description,  might  have  sufficed ;  since, 
though  an  averment  wholly  irrelevant  may  be  re- 
garded as  surplusage,  one  which  is  material  must  be 
proved  as  pleaded. 

The  defendant*  said  of  the  plaintiff,  "  He  is  a 
quack,  and  if  he  shows  you  a  diploma,  it  is  a  for- 
gery." 

The  declaration  averred  that  the  plaintiff  "  was 

*  Dr.  Moises  v.  Pr.  Thornton,  8  T.  R.  30-". 


a  physician,  and  had  regularly  taken  his  degree  of 
Doctor  of  physic." 

In  support  of  this  averment,  he  produced  a  diplo- 
ma, purporting,  on  the  face  of  it,  to  have  been 
granted  by  the  University  of  St.  Andrew's,  in  Scot- 
land, and  to  have  the  university  seal  appendant  to 
it.  To  authenticate  this,  a  witness  was  offered,  to 
prove  that  the  rector  and  professors  of  the  universi- 
ty of  St.  Andrew's  had  acknowledged,  in  his  pre- 
sence, their  signatures  subscribed  to  the  diploma. 
The  same  witness  was  ready  to  prove  a  certificate, 
by  the  master  and  professors,  of  the  due  taking  of 
the  degree,  and  an  acknowledgment  by  the  seal- 
keeper  of  the  university,  that  the  seal  appendant  to 
the  diploma  was  the  seal  of  the  university.  Lord 
Kenyon,  C.  J.  deeming  this  evidence  insufficient, 
the  plaintiff  was  nonsuited.  A  motion  for  a  new 
trial  was  afterward  refused,  on  the  ground,  that  the 
plaintiff*  having  averred  that  he  had  duly  taken  the 
degree  of  doctor  of  physic,  he  was  bound  to  prove 
it ;  and  it  was  observed  by  Lawrence,  J.  "  even  if 
it  be  not  necessary  in  general  for  the  party  to  show- 
that  he  has  taken  his  degree,  in  this  case  it  is  neces- 
sary on  account  of  the  plaintiff's  allegation." 

Lord  Kenyon,  C.  J.  also  observed,  that  the  best 
evidence  to  prove  the  taking  of  a  degree  is  by  the 
production  of  the  books  containing  the  act  of  the 
corporation  by  which  the  degree  is  conferred. 

It  seems  perfectly  settled,  that  the  plaintiff*  may 
describe  his  character  generally  in  the  declaration, 
as  that  he  is  a  physician  or  attorney.  What  evi- 
dence will  satisfy  such  a  description  is  not  so  cer- 
tain. 

49 


ma 

In  the  case  of  Pickford  v.  Gutch,*  the  action  was 
brought  for  calling  the  plaintiff  a  quack.  The  de- 
claration alleged  that  the  plaintiff  had  used  and 
exercised  the  profession,  &c.  of  a  physician,  &c. 
To  prove  this,  a  person,  who  was  a  surgeon  and 
apothecary,  was  called,  who  would  have  proved 
that  the  plaintiff  for  several  years  had  prescribed, 
&c.  as  a  physician,  and  that  the  witness  had  acted 
under  him.  But  Buller,  J.  was  of  opinion,  that 
the  evidence  was  insufficient,  and  that  it  was  ne- 
cessary to  produce  the  plaintiff's  diploma  ;  on 
which  it  was  produced  in  court,  and  the  plaintiff 
recovered. 

In  the  case  of  Berryman  v.  Wise,f  the  plaintiff 
averred  that  he  was  an  attorney  of  the  court  of 
King's  Bench,  and  having  been  employed  in  a  par- 
ticular cause,  had  received  a  certain  sum  of  money, 
which  the  defendant  charged  him  with  swindling, 
adding  a  threat,  that  he  would  move  the  court  to 
have  him  "struck  off  the  roll  of  attorneys."  Upon 
the  trial  before  Thomson,  Baron,  at  the  York  as- 
sizes, the  plaintiff  proved  the  words,  and  his  having 
been  employed  as  an  attorney  in  that  and  other  suits. 
It  was  objected  that  the  plaintiff  had  not  proved  the 
iirst  allegation  in  his  declaration,  viz.  that  he  was  an 
attorney  of  the  court  of  King's  Bench,  which  could 
only  be  proved  by  his  admission,  or  by  a  copy  of 
the  roll  of  attorneys.  But  the  objection  was  over- 
ruled, the  learned  Judge  reserving  the  point,  with 
liberty  to  move  to  enter  a  nonsuit. 

Upon  motion  made,  the  court  were  of  opinion. 

*  Before  Duller.  3.  Dorchester  Summer  assizes.  1787.         t  4  T-  R.  366. 


*    387 

that  the  evidence  was  sufficient,  for  the  defendant's 
threat  imported  that  the  plaintiff  was  an  attorney. (1) 
And  Buller,  J.  said,  "  In  the  case  of  all  peace 
officers,  justices  of  the  peace,  constables,  &c  it  is 
sufficient  to  prove  that  they  acted  in  those  charac- 
ters without  proving  their  appointments,  and  that 
even  in  the  case  of  murder.  Excise  and  custom- 
house officers,  indeed,  fall  under  a  different  consi- 
deration ;  but  even  in  their  case  evidence  was  ad- 
mitted, both  in  criminal  and  civil  suits,  to  show  that 
the  party  was  a  reputed  officer,  prior  to  the  1 1th  Geo. 
I.  c.  10.  s.  12. 

In  case  of  actions  brought  by  attorneys  for  their 
fees,  the  proof  now  insisted  upon  has  never  been 
required  ;  neither  in  actions  for  tithes  is  it  necessary 
for  the  incumbent  to  prove  presentation,  institution, 
and  induction ;  proof  that  he  received  the  tithes,  and 
acted  as  incumbent,  is  sufficient." 

But  in  the  last  case  upon  this  subject,  Smith  v. 
Taylor,*  nearly  the  same  question  arose  as  in 
Pickford  v.  Gutch  ;  and  the  point  was  much  dis- 
cussed both  by  the  counsel  and  the  learned  Judges 
of  the  Common  Pleas,  who  were  ultimately  di- 
vided in  opinion.  The  declaration  stated,  that  the 
plaintiff,  at  the  time  of  speaking  the  words,  was  a 
41  physician."  Upon  trial  of  the  cause  before  Sir 
J.  Mansfield,  C.  J.  it  was  proved  that  the  plaintiff 
had  practised  for  some  years  as  a  physician  in  the 

MN.K.  196. 


(1)  So  in  an  action  for  saying  "the  Reverend  Thomas  Smith  is  a  perjured 
man,"  parole  evidence  that  the  plaintiff  is  a  minister  of  the  Gospel  is  sufficient 
Cummin  ?.  Smith,  2  Serg.  &  Rawle,  440. 


3*3 

town  of  Yarmouth ;  that  Dr.  Girdlestone,  who  was 
also  a  physician  at  Yarmouth,  and  of  longer  stand- 
ing than  the  plaintiff,  had  been  attending  one 
Richard  Helsden  as  a  patient,  and  that  the  defend- 
ant was  employed  as  his  apothecary.  That  Dr. 
Girdlestone  being  obliged  to  leave  Yarmouth  for  a 
day,  the  plaintiff  was  sent  for  at  the  request  of 
Helsden's  wife,  and  prescribed  for  him  ;  the  pre- 
scription was  made  up  by  the  defendant.  On  Di\ 
Girdlestone's  return,  the  plaintiff  requested  that  he 
might  be  sent  for  ;  Dr.  G.  refused,  and  the  plaintiff 
then,  with  reference  to  the  transaction,  said,  "  I  and 
Dr.  G.  both  thought  that  Helsden  was  doing  well, 
till  Mrs.  Helsden  called  in  Dr.  Smith,  who  has  upset 
all  we  have  done,  and  die  he  (Helsden)  must." 
Moises  v.  Thornton  was  cited  on  the  part  of  the  de- 
fendant, to  prove  it  necessary  for  the  plaintiff  to 
show  that  he  was  a  regular  physician.  His  lord- 
ship was  of  opinion,  that  the  case  was  irrelevant, 
and  the  plaintiff  obtained  a  verdict  for  100/.  The 
case  was  afterward  argued  on  a  rule  to  show  cause 
why  the  verdict  should  not  be  set  aside,  and  a  new 
trial  had  ;  and  the  learned  judges  not  being  agreed, 
delivered  their  opinions  seriatim,  Sir  J.  Mansfield, 
C.  J.  and  Mr.  Justice  Heath,  agreeing  that  the 
plaintiff  was  entitled  to  recover  without  further 
proof;  and  Rooke  and  Chambre,  Justices,  con- 
ceiving it  to  be  requisite  for  the  plaintiff  to  prove 
that  he  was  lawfully  authorized  to  practise.  Since 
the  court  were  equally  divided,  the  plaintiff  of  course 
retained  his  verdict.  (1) 


(1)  Where  the  declaration  alleged,  that  the  plaintiff  at  the  time  of  speaking 
&c  was  of  two  trades,  and   that  the  defendant  intending   to   injure  him  in  hi* 


8S9 

In  hazarding  a  few  observations  on  the  subject  of 
this  legal  difficulty,  it  will  be  convenient  to  consider 
the  varieties  which  special  characters  admit  of,  con- 
sidered with  reference  to  the  means  by  which  they 
are  acquired. 

1.  The  character  may  be  acquired  by  mere  user, 
without  the  aid  of  any  legal  form  for  the  purpose  of 
clothing  the  party  with  that  character  ;  as,  where 
he  sues  as  a  merchant  or  mechanic. 

2dly.  In  other  cases,  where  the  character  is  not 
created  by  any  legal  form,  the  acting  in  it  may  be 
prohibited,  unless  the  party  qualify  himself  in  some 
particular  mode ;  as,  where  a  person  exercises  a 
trade  mentioned  in  the  statute  5  Eliz.  c.  4.  in  such 
case  he  is  a  tradesman  by  mere  user,  but  is  prohi- 
bited under  penalties  from  following  it,  unless  he 
has  qualified  himself  by  serving  as  an  apprentice  for 
seven  years. 

3dly.  Some  legal  form  may  be  necessary,  in  or- 
der to  confer  the  character  in  which  the  plaintiff" 
sues ;  as,  where  words  are  spoken  of  him  as  a  jus- 
tice of  the  peace,  or  as  the  incumbent  of  a  particu- 
lar benefice,  where  legal  forms  are  necessary  to  in- 
vest the  party  with  the  character  in  which  he  as- 
sumes to  have  been  injured. 

In  the  first  of  these,  no  doubt  can  arise  as  to  the 


several  trades  as  aforesaid,  and  to  prevent  persons  from  employing  him  in  the 
way  of  his  said  several  trades,  in  a  certain  discourse  which  he  had  of  and  con- 
cerning the  plaintiff  in  one  of  Ids  trades,  spoke,  &c.  Held,  that  though  the  plain- 
tiff failed  to  prove  he  was  o(bolh  trades,  yet  he  might  recover  upon  proof  that  he 
was  of  that  trade,  concerning  which  the  defendant  was  charged  to  have  spoken 
the  words.  Higgins  v.  Cogswell,  3  Mau.  &  Selw.  369.  See  May  v.  Brown,  an i 
Letvis  v.  Walter,  4  Dow.  &  Kyi.  670,  810. 


890 

evidence  ;  a  merchant,  who  complains  that  his  re- 
putation as  a  merchant  has  been  injured,  can  give 
no  other  proof  of  his  title  to  the  character  than  that 
he  has  traded  as  such. 

Iii  the  second  class  of  cases,  the  character  is  ac- 
quired by  user;  but  the  user  itself  is  prohibit ed, 
unless  certain  statutable  requisitions  have  been  com- 
plied with. 

It  does  not  appear  in  general  to  have  been  deemed 
necessary  lor  a  plaintiff,  who  sued  in  such  a  cha- 
racter, to  show  that  he  had  complied  with  every 
requisite  which  a  penal  statute  might  have  pre- 
scribed ;  and  since  such  a  rule  comprehends  a  great 
number  of  cases  much  litigated,  the  absence  of  ob- 
jections on  the  subject  is  a  cogent  argument  to 
prove  that  they  were  never  thought  available.  If 
such  proof  were  necessary,  the  necessity  Would  ex- 
tend to  every  action  in  which  a  tradesman  or  me- 
chanic, comprehended  within  the  5th  of  Elizabeth, 
brought  an  action  for  words  relating  to  his  trade  or 
business,  and  he  would  upon  trial,  be  put  to  prove 
that  he  had  served  for  seven  years  as  an  apprentice, 
since  otherwise  his  exercise  of  it  would  be  unlaw- 
ful; and  on  the  same  ground  every  magistrate,  or 
officer  under  government,  would,  in  a  similar  case, 
be  bound  to  prove  that  he  had  duly  taken  the  sacra- 
ment, or  complied  with  other  forms  prescribed  by 
the  statutes,  the  neglect  ot  which  would  render  the 
acting  in  such  office  illegal. 

In  the  case  of  Smith  v.  Taylor,  where  the  plain- 
tiff averred  himsell  to  be  a  physician,  the  point  ex- 
pressly arose.  It  could  not  be  contended  in  that 
case,  that  the  p  aintiff  was  not  a  physician,  since  no 


^91 

precise  form  is  by  law  essential  to  the  constituting  a 
person  a  physician  ;*  and  physicians  existed  eo 
nomine,  and  were  contemplated  by  the  law  as  such 
before  the  prohibiting  statute  was  passed,  which 
rendered  their  practising  without  certain  qualifica- 
tions unlawful.  That  statute  could  not,  therefore, 
be  considered  as  creating  a  new  order  and  descrip- 
tion in  the  profession.  The  objection  then  amounted 
to  this,  that  the  plaintiff  being  what  he  had  by  user 
proved  himself  to  be,  "a  physician,"  was  bound 
to  proceed,  and  show  that  he  had  exercised  his  pro- 
fession without  violating  any  statute.(l) 

Though  the  case  of  Berryman  v.  Wise  be  not  an 
express  and  distinct  authority  to  show  that  the  legal 
investment  with  an  office  is  in  no  case  necessary  to 
be  proved,  inasmuch  as  the  user  in  that  case  was 
mingled  with  the  admission  contained  in  the  defend- 
ant's threat ;  yet  it  goes  far  to  prove,  that  where  no 
formal  inception  of  character  is  required  by  law,  it 
is  unnecessary  to  prove  a  compliance  with  any  sta- 
tutes prohibiting  the  acting  in  that  character  under 
particular  restrictions. 

In  that  case  it  was  not  contended  that  the  plain- 
tiff was  obliged  to  prove  that  he  qualified  himself 
to  act  in  the  capacity  of  an  attorney,  as  directed 
by  the  25th  Geo.  3.  c.  SO;  and  yet  it  appears  clear, 
that  if  it  had  been  shown  that  the  plaintiff,  at  the 
time  the  words  were  spoken,  was  acting  as  an  at- 

*  5  Com.  Dig.  tit.  Physician. 


(1)  It  has  been  decided  in  Smith  Carolina,  that  in  an  action  by  a  physician  for 
slander,  as  to  his  professional  skill,  proof  of  his  having  practised  for  several  years 
with  reputation,  was  sufficient  evidence  of  his  being  a  physician-    Brown  v 
■Vims.  1  Cons  t  Ct    Rep-  235. 


392 

torney  unlawfully,  and  in  direct  violation  of  a  sta- 
tute, he  could  not  have  recovered.  There  was  the 
same  necessity,  therefore,  in  Berryman  and  Wise, 
of  proving  that  a  certificate  had  been  taken  out  by 
the  attorney,  as  existed  in  the  case  of  the  physi- 
cian, to  prove  his  compliance  with  the  statute  of 
Henry  the  Eighth,  supposed  to  prohibit  the  prac- 
tising as  a  physician  without  a  degree  or  letters 
testimonial.  Neither  does  the  admission  in  Berry- 
man  and  Wise  at  all  apply  to  this  point,  or  in  any 
way  operate  as  supplementary  evidence;  since,  al- 
lowing it  the  most  ample  effect,  it  can  amount  to 
no  more  than  an  acknowledgment  that  the  plaintiffs 
name  had  been  admitted  on  the  roll  of  attorneys, 
which  affords  no  evidence  that  he  afterward  regular- 
ly qualified  himself  by  taking  out  the  statutable  cer- 
tificate. 

The  plaintiff,  in  the  case  of  Smith  v.  Taylor, 
having  proved  that  he  had  practised  as  a  physician, 
since  it  was  not  contended,  on  the  other  hand,  that 
he  would  be  entitled  to  recover  if  the  practising 
was  illegal,  the  question  was,  upon  which  party 
the  burthen  of  proof  should  be  thrown — upon  the 
plaintiff,  to  show  that  he  had  acted  legally,  or  upon 
the  defendant,  to  prove  that  the  plaintiff  had  vio- 
lated a  statute. 

The  general  presumption  of  the  law  in  favour  of 
innocence  speaks  powerfully  in  favour  of  the  plain- 
tiff; but  to  this  it  is  objected,  that  the  plaintiff,  by 
proving  that  he  has  acted  in  a  character  requiring 
the  observance  of  certain  legal  requisites,  has  placed 
himself  in  the  same  situation  with  a  defendant 
against  whom  an  action  is  brought  to  recover  sta- 


39& 

tutable   penalties;  in  which  case,  it  is  incumbent 
upon  him  to  rebut  a  presumed  liability  by  proving 
the  qualification.     There  seems,  however,  to  be  a 
material  distinction  as  to  the  legal  situation  of  the 
parties  in  the   two  cases  :    in  the  one,  the  plaintiff 
proceeds  to  enforce  the  existing  law,  by  the  means 
which  the   law  directs,  and  the  question  of  quali- 
fication is  directly  in   issue  between  the    parties. 
In  the  other,  the  defendant  adopts  a  mode  of  pro- 
ceeding which  the  law  does  not  warrant,  and  then 
attempts  to  screen  himself  behind  a  defect  in  the 
plaintiff's   title,  which  does  not  come   directly  in 
issue  ;  he  does  not  contend  that  his  own  conduct 
is  pure,  but  relies   on  the  culpability  of  his  oppo- 
nent ;  contending,  that   on  grounds  of  general  po- 
licy, the  plaintiff  is  not  entitled  to  damages.     The 
rule  of  policy  certainly  prescribes  that  a  person,  in 
the  illegal  receipts  of  profits,  shall  not  recover  for 
their  diminution,  by  whatsoever  means  it  ma}'  have 
been  effected,  but  it  seems  equally  to  prohibit  a 
wanton  attack  upon  character  at  the  discretion  of 
an  individual,  which*  may  produce  -consequences 
infinitely  more  serious  than  the  pecuniary  penalty 
prescribed  by  the  legislature :  not  that  the  magni- 
tude of  these  consequences   is  material  where  the 
illegality  has     once   been    substantiated,    but  the 
possibility  of    their  far  exceeding   the   legislative 
measure  of  punishment,  seems  to  operate  in  favour 
of  the  plaintiff,  where  the  question  is,  from  whom 
the  proof  of  illegality  or   innocence  shall  be  ex- 
pected. 

Evidence  that  the  party  has  acted  in  a  particular 
capacity,  for  which  he  ought  to  have  qualified  him- 
50 


.394 

>en"  in  a  manner  prescribed,  in  a  proceeding  against 
him  grounded  on  the  neglect  to  qualify,  imposes 
upon  him  no  doubt  the  necessity  of  proving  his 
qualification ;  but  the  same  necessity  does  not 
always  exist  when  the  party  has  brought  himself 
by  evidence  within  the  predicament ;  if  it  did,  it 
would  follow  that  a  carpenter,  in  an  action  for  a 
month's  work  and  labour  for  the  defendant,  must 
go  on  to  prove  his  having  served  an  apprenticeship; 
and  that  a  surgeon*  in  London,  in  an  action  for 
his  service,  must  prove  his  license  from  the  college. 
In  such  cases,  though  upon  grounds  of  strict  legal 
policy,  the  plaintiff  may  be  disabled  to  recover 
where  the  illegality  of  his  acting  is  manifest ;  yet  the 
law  will  not  presume  the  defect,  but  require  proof 
of  it  from  the  defendant,  who  obtrudes  the  objec- 
tion upon  the  notice  of  the  court. 

The  general  presumption  of  the  law  in  favour  of 
a  man's  having  performed  his  duty  is  so  strong  as 
in  some  instances  to  outweigh  the  rule  which 
calls  upon  the  party  to  prove,  the  affirmative ;  and 
this  happens  where  the  party  neglecting  would 
have  been  guilty  of  a  criminal  omission.  The  case 
of  Monke  v.  Butler, f  is  very  strong  to  this  effect. 
The  plaintiff  sued  for  tithes  in  the  spiritual  court, 
the  defendant  pleaded  that  the  plaintiff  had  not 
read  the  thirty-nine  articles,  and  the  court  put  the 
defendant  to  prove  it,  though  a  negative.  Where- 
upon he  moved  the  court  for  a  prohibition,  which 
was  denied,  since  the  law  will  presume  that  a  par- 
son has  read  the  articles,  for  otherwise  he  is  to  lose 
his  benefice. 

*  Sec  Gremare  v.  Le  Clerc  Bois  Valer,  2  Camp.  144.     I, aw  v.  Hodgson.  2 
Camp.  147.     11  East,  180. 

*  1  Poll.  Rep.  83. 


$95 

And  upon  the  same  principle,  upon  an  inform*- 
ion  against  Lord  Halifax,*  for  refusing  to  deliver 
up  the  rolls  of  the  auditor  of  the  Court  of  Exche- 
quer, the  court  put  the  plaintiff  upon  proving  the 
negative,  viz.  that  the  defendant  did  not  deliver 
them,  for  a  person  shall  be  presumed  duly  to  exe- 
cute his  office  till  the  contrary  appears. 

In  the  King  v.  Coombs,f  the  defendant  swore  an 
affirmative,  for  which  an  information  was  exhibited 
against  him  ;  and  although  a  negative  could  not  be 
proved,  the  court  directed  that  the  prosecutors  should 
first  give  probable  evidence,  and  that  the  defendant 
should  afterward  prove  the  affirmative  if  he  could. 
These  cases  were  cited,  and  their  authority  recog- 
nised by  Lord  Ellenborough,  C.  J.  in  delivering  the 
opinion  of  the  court  in  the  case  of  Williams  against 
the  East  India  Company.}: 

It  seems  difficult  to  distinguish  the  case  of  Monke 
v.  Butler  from  that  of  Smith  v.  Taylor,  as  far  as  re- 
lates to  evidence  of  character.  In  each  case,  the 
plaintiff  charges  the  defendant  as  a  wrong  doer  ;  in 
the  first,  by  unlawfully  withholding  tithes  ;  in  the  se- 
cond, by  diminishing  his  professional  profits  by  an 
officious  intermeddling ;  the  nature  of  the  defence 
is  the  same,  since  in  each  the  defendant  insists  upon, 
the  want  of  a  legal  qualification  in  his  adversary; 
and  in  each  the  defendant  would  be  guilty  of  neglect 
in  acting  without  the  qualification ;  so  strong,  there- 
fore, is  the  analogy,  that  it  is  not  easy  to  conceive 
upon  what  grounds  the  presumption  which  prevails 
in  favour  of  the  plaintiff  in  the  one  case,  should  not 
equally  operate  in  the  other. 

*  B.  N.  P.  298.     Vin-  Ab.  tit.  Evidence. 

"»  Comb.  57.  t  3  East.  R.  192. 


6m 

Thirdly,  Where  the  character  is  derived  irom 
some  legal  and  formal  investment.  In  the  case  of 
Berry  man  and  Wise,  the  evidence  that  the  plaintiff 
had  acted  as  an  attorney  was  mingled  with  the  quasi 
admission,  supplied  by  the  defendant's  words,  and 
stress  was  laid  upon  that  circumstance  both  by  the 
learned  judge  who  tried  the  cause  and  by  the  court 
above,  by  whom  his  opinion  was  confirmed  ;  the  de- 
cision, therefore,  cannot  be  considered  as  a  distinct 
and  express  authority,  to  show  that  evidence  of  user 
alone  is  in  such  cases  sufficient. 

But  the  dictum  of  Mr.  Justice  Buller,  subjoined 
to  the  opinion  of  the  court,  clearly  evinces  his  opi- 
nion, that  evidence  of  the  plaintiffs  having  practised 
as  an  attorney  would  alone  have  been  sufficient ; 
since,  without  adverting  to  the  circumstance  of  ad- 
mission, he  places  the  evidence  on  the  same  footing 
with  that  allowed  in  the  case  of  a  constable,  in  which 
it  had  solemnly  been  decided,  that  his  having  acted 
in  the  office  was  sufficient  proof  that  he  was  a  con- 
stable, even  in  an  indictment  for  murder. 

The  general  mode  of  pleading  in  an  action  againsi 
a  wrong  doer  for  a  disturbance,  supplies  an  argu- 
ment applicable  to  this  case.  In  a  possessory  action, 
where  the  plaintiff  complains  that  he  has  been  hin- 
dered in  the  enjoyment  of  any  right,  it  seems  to  be 
in  no  case  necessary  to  allege  any  legal  title*  to 
that  in  which  he  is  disturbed  ;  so  that  in  an  action 
against  the  defendant  for  a  disturbance  in  his  right 
to  take  toll,  or  to  enjoy  an  exclusive  right  of  ferry 
it  is  sufficient  for  the  plaintiff  to  aver  his  possession 
or  that  "  habere  debet"  without  setting  out  his  title 

*  Ow.  10:>.     3WHJ.  ^an.  113  a.  n.  '■ 


S\)7 

the  plain  reason  for  allowing  which  is,  that  the  plain- 
tiff is  to  recover  damages  only,  ami  the  right  or  title 
to  the  land  does  not  come  in  question. 

And  so,  in  the  action  for  slandering  a  plaintiff  in 
his  profession  or  office,  which  bears  a  strong  analogy 
to  an  action  on  the  case  for  a  disturbance,  it  is  suffi- 
cient to  aver  that  the  plaintiff*  used  and  exercised 
the  profession,  or  generally,  that  he  held  the  office  ; 
whence  it  should  seem,  that  proof  of  such  posses- 
sion, as  against  a  disturber,  without  legal  authority, 
would  be  sufficient  evidence  to  satisfy  the  allega- 
tion. 

Next  as  to  evidence  of  malice. 

The  different  presumptions  of  law  in  cases  of 
slander,  as  already  observed,  are,  first,  conclusive 
in  favour  of  the  defendant ;  secondly,  in  favour  of 
the  defendant,  but  liable  to  be  rebutted  by  evidence 
of  express  malice ;  or  thirdly,  against  the  defendant, 
but  liable  to  be  controverted  by  any  evidence 
proving  his  intention  to  have  been  pure.  In  the 
second  class,  where  the  burthen  of  proving  express 
malice  is  thrown  upon  the  plaintiff,  he  may,  in  sup- 
port of  the  allegation,  give  in  evidence  any  expres- 
sions of  the  defendant,  whether  oral  or  written,  in- 
dicating spite  and  ill-will  towards  him,  for  the  purpose 
of  showing  the  temper  and  disposition  with  which 
he  made  the  communication  complained  of.  And 
since  the  object  of  such  evidence  is  to  enable  the 
jury  to  ascertain  whether  the  defendant  acted  from 
good  or  evil  motives,  it  is  not  material  whether  the  in- 
stances of  the  defendant's  ill-will,  are  or  are  not  im- 
mediately connected  with  the  publication  in  question ; 

*  «  T.  K.  305.    Pickford  v.  Hutch- 


39S 

but  a  judge  will,  in  such  a  case,  instruct  the  jury  to 
confine  themselves,  in  their  assessment  of  damages, 
to  the  words  stated  in  the  declaration.  It  was  once 
doubted  whether,  in  admitting  evidence  of  this 
nature,  a  distinction  ought  not  to  be  made  between 
words  not  actionable  in  themselves  and  those  which 
are  so.  In  the  case  of  Mead  v.  Daubigny,*  Lord 
Kenyon  rejected  evidence  of  words  actionable  in 
themselves,  and  not  mentioned  in  the  declaration ; 
but  his  Lordship  afterward  changed  his  opinion,  and 
admitted  such  evidence  in  a  subsequent  case.f(l) 

In  Russel  v.  Macquister,t  evidence  of  action- 
able words  spoken  after  the  time  of  those  laid  in 
the  declaration,  was  objected  to,  on  the  ground  that  if 
such  words  were  taken  into  consideration,  by  the  jury, 
the  defendant  might  be  made  to  pay  a  double  com- 
pensation, for  the  same  injury,  since  another  action 
might  be  brought  for  the  words  last  spoken,  and  the 
distinction  was  taken  between  that  case  and  the  case 
of  words  not  actionable.  But  Lord  Ellenborough, 
C.  J.  overruled  the  objection,  observing,  that  though 

*  Pcalce's  Case,  125. 

t  Lee  v.  Huson,  Peakc's  Cases,  166.     R.  v.  Pearce,  lb.  *!5. 

J  1  Camp.  49. 


(1)  Wallis  v.  Mease,  3  Binn.  546.  Kean  v.  M'Laughlin,  2  Serg.  &  Rawle, 
469.  Shock  v.  M'Chesney,  2  Yeates,  473.  It  would  seem  to  be  at  least  very 
doubtful  whether  in  an  action  for  a  libel,  publications  by  the  defendant  against 
the  plaintifif,  subsequent  to  the  libel  charged  in  the  declaration,  and  which  arc 
libellous  in  themselves,  arc  admissible  to  show  the  malice  of  the  defendant  in 
publishing  the  original  libel-  Thomas  v.  Croswell,  7  Johns.  Rep.  264.  Sec 
Sluart  y.  Lovell,  2  Starkie's  Rep.  93.  Finnerty  v.  Tipper,  2  Canipb.  Rep.  72. 
In  Tatev.  Humphrey,  2  Campb-  Rep.  73,  n.  Baron  Graham  permitted  the  plain- 
tiff to  give  in  evidence  a  bill  of  indictment  which  had  subsequently  been  pre- 
ferred by  the  defendant  against  him,  and  which  the  Grand  Jury  returned 
ignoramus.  The  Court  afterwards  refused  a  new  trial,  upon  the  ground  that 
fl>e  evidence  was  properly  received 


:J99 

such  a  distinction  had  once  prevailed,  it  was  not 
founded  in  principle  ;  and  that,  although  no  evidence 
can  be  given  of  any  special  damage  not  laid  in  the 
declaration,  yet  that  any  words,  or  any  act  of  the 
defendant,  is  admissible,  to  show  quo  cmimo  he 
spoke  the  words  which  are  the  subject  of  the  ac- 
tional) 

Upon  the  same  principle,*  where  a  libel  was  con- 
tained in  a  political  paper  published  weekly  by  the 
defendant,  after  proof  that  the  paper  in  question  had 
been  purchased  at  the  defendant's  office,  evidence 
was  admitted  of  the  previous  sale  of  other  papers 
with  the  same  title  at  the  same  office.  And  the  rea- 
son of  admitting  it  was,  to  show  that  the  papers, 
which  purported  to  be  weekly  publications  of  public 
transactions,  were  sold  deliberately,  and  vended  in 
the  regular  course  of  circulation ;  that  the  paper 
containing  the  libel  was  not  published  by  mistake, 
but  vended  publicly,  deliberately,  and  in  regular 
transmission  for  public  perusal.  (2) 

In  case  of  actions  brought  by  former  servants 
against  masters  for  giving  false  characters,  it  has  al- 
ready been  seen  that  it  is  incumbent  on  the  plaintiff 
to  adduce  extrinsic  proof  of  malice. 

In  such  instances  the  plaintiff,  if  charged  with 
dishonesty  and  misconduct  in  the  defendant's  ser- 
vice, is  at  liberty  to  prove  his  good  character  and 

*  Plunkett  v.  Cobbett,  5  Esp.  136. 


(1)  Proof  of  parole  declarations  by  the  defendant,  after  the  institution  of  the 
suit  for  slander,  that  he  did  not  mean  to  charge  the  plaintiff  with  the  crime  al- 
leged by  the  slanderous  words,  or  that  the  words  were  spoken  in  the  heat  of  pas- 
sion, is  not  admissible  in  his  favour-  M'./Hcxahder  v-  Harris,  6  M»nf.  465,  pi.  'i. 

(2)  See  ante.  398,  note  (1.) 


400 

conduct  in  forme-  services,  since  general  character 
is  in  some  respects  in  issue  ;  and  it  seems  that  wher- 
ever the  words  impute  crime  or  dishonest}-,  evidence 
of  previous  good  conduct  is  admissible.*     So  the 
plaintiff  may  prove  by  the  evidence  of  other  servants 
in  the  same  family,  that  whilst  he  remained  in  the 
defendant's  service,  he  conducted  himself  well,  and 
that  no  complaints  of  the  nature  ascribed  to  him  by 
the  defendant  then  existed.!     And  the  tendency  and 
bearing  of  this  evidence  is  to  show,  that  the  defend- 
ant knew  that  the  character  he  gave  was  false.     It 
has  been  said,  that  a  servant,  in  order  to  recover, 
must  prove  the  character  to  have  been  maliciously^ 
as  well  as  falsely  given.     By  this  is  to  be  under- 
stood, that  in  addition  to  that  presumption  of  law, 
as  to  the  plaintiff 's  innocence  of  the  charge,  arising 
from  the  defendant's  declining  to  justify,  he  must 
go  further,  and  show  that  the  character  was  given 
out  of  spite  and  ill-will ;  and  the  plain  reason  for  this 
is,  that   the  knowledge  of  misconduct  frequently 
rests  with  the  defendant  himself ;  and  being  unable 
to  prove  it  by  the  testimony  of  others,  if  the  general 
presumption  were  to  operate  against  him,  he  would 
be  left  without  defence.     To  prevent  such  incon- 
venience, the  law  does  not  permit  the  presumption 
of  falsity  so  to  operate,  but  requires  malice  to  be 
proved  from  other  sources.     In  case,  however,  the 
plaintiff  should  be  able  expressly  to  prove  that  the 
defendant  was  aware  of  the  falsity,  no  further  proof 
of  malice  would  be  requisite  ;  nor,  indeed,  could  a 
stronger  proof  of  it  be  produced  than  that  the  de- 

*  King  v.  Waring  and  Uxor,  5  Esp.  13.  t  3  B.  &  P.  589. 

"  Weatherstone  v.  Hawkins.  1  T.  R.  110- 


403 

fendant  had  given  a  character  of  the  plaintiff  inju- 
rious to  his  reputation,  with  a  full  knowledge  that  it 
was  untrue. 

The  circumstances  under  which  the  master  and 
servant  parted,  any  expressions  of  ill-will  uttered  by 
the  former,  his  officiously  acquainting  others  with 
the  servant's  misconduct,  without  any  previous  ap- 
plication to  him  for  a  character,*  are  all  facts  proper 
to  be  left  to  a  jury  to  give  their  opinion  upon*  the 
question  of  intention. 

In  the  third  class  of  cases,  where  the  presump- 
tion of  law  is  against  the  defendant,  no  evidence  of 
malice  is  of  course  expected  from  the  plaintiff';  and 
any  overt  act  of  publication  imposes  the  burthen  of 
explanation  upon  the  defendant,  since  it  will  be  pre- 
sumed that  the  part}*  knew  the  contents  of  that  which 
he  published.  Thus  it  has  been  seen,  that  a  book- 
seller is,  in  the  first  instance,  presumed  to  know  the 
contents  of  any  book  sold  at  his  shop  ;  and  upon 
proof  of  the  sale,  the  contents  are  so  far  considered 
to  have  been  fixed  upon  him,  that  the  plaintiff  is  en- 
titled to  have  them  read  in  evidence  against  him ; 
so  far  has  this  species  of  presumption  been  carried, 
that  it  has  been  held,  that  under  an  indictment  for 
sending  a  threatening  letter,!  the  bare  delivery  of 
it,  though  sealed,  was  of  itself  prima  facie  evidence 
of  a  guilty  knowledge  of  the  contents. 

So,  in  case  a  servant  deliver  a  letter  containing  a 
libel,  by  his  master's  directions,  the  mere  proof  of 
delivery,  though  sealed,  would  in  the  first  instance 
entitle  the  plaintiff  in  an  action  against  the  servant, 

*  3  B.  &  P.  587. 

;  The  Kin-*  v.  Girdwood,  Leach.  Cas-  C.  L.  ^f>9■ 

51 


402 

to  have  the  contents  read  ;  and  if  the  servant,  in  his 
defence,  showed  that  he  received  the  letter  sealed 
from  his  master,  the  plaintiff  might  reply  to  such 
evidence,  by  showing  that  the  servant  was  actually 
aware  of  the  contents  ;  since,  though  a  servant  is  in 
duty  bound  to  execute  the  commands  of  his  master 
which  appear  lawful,  he  is  not  protected  in  the  exe- 
cution of  those  which  he  knows  to  be  illegal. 

In  general,  no  evidence  can  be  given  of  any  da- 
mage not  stated  in  the  declaration  ;*  and  any  damage 
which  is  stated  must  be  proved  to  have  resulted 
from  the  wrongful  act  of  the  plaintiff,  as  averred  in 
the  pleadings.  It  has  been  said,  that  the  plaintiff, 
in  an  action  for  a  malicious  prosecution,  may  give 
in  evidence  the  circumstances  of  the  defendant,  in 
order  to  increase  the  damages.  The  principle, 
however,  upon  which  such  evidence  is  allowable,  is 
not  very  obvious,  and  scarcely  can  be  warranted, 
unless  the  situation  and  rank  of  the  defendant  have 
affected  the  quantum  of  prejudice  sustained  by  the 
plaintiff.  (1) 

*  See  Russel  ▼.  Macquister,  1  Camp.  48. 


(1)  See  Lamed  v.  BufUngton,  3  Mass.  Rep.  54(5 


4Wtf 


CHAPTER  XXVII. 


Evidence  for  the  Defendant. 

It  has  already  been  seen  of  what  circumstances 
the  defendant  may  avail  himself,  to  show  that  his 
conduct  was  not  attributable  to  malice,  under  the 
general  issue*  or  by  pleading. 

Where  the  words  are  capable  of  being  explained 
by  reference  to  circumstances,  such  proof  is  incum- 
bent on  the  defendant.! 

In  the  case  of  Penfold  v.  Westcote,;  it  was 
proved  that  the  defendant  said  of  the  plaintiff, 
"  Why  donft  you  come  out,  you  blackguard,  rascal, 
scoundrel  Penfold,  you  are  a  thief."  The  witness, 
who  proved  the  words,  was  not  asked  whether,  by 
the  word  "  thief,"  he  understood  that  the  defendant 
meant  to  charge  the  plaintiff  with  felony. 

Chambre,  J.  in  his  direction  to  the  jury,  said  that 
it  lay  on  the  defendant  to  show  that  felony  was  not 
imputed  by  the  word  "  thief."  And  after  a  verdict 
for  the  plaintiff,  a  new  trial  was  refused. 

But  where  it  plainly  appears  from  the  context, 
that  the  word  was  not  used  in  a  felonious  sense,  the 

*  See  Chap.  23.  t  Cro.  J.  114.     B.  N.  P.  5, 

'  N.  R.  335 


404 

plaintiff  will  be  nonsuited  upon  his  own  showing.* 
In  general,  it  seems  that  where  the  publication 
of  a  libelf  has  been  fixed  upon  the  defendant,  it 
rests  with  him  to  establish  the  innocence  of  his  in- 
tention.i 

It  may  next  be  considered  of  what  evidence  the 
defendant  may  avail  himself  for  the  purpose  of  mi- 
tigating the  damages. 

In  Mullett  v.  Hulton,§  the  declaration  stated 
that  the  plaintiff  was  about  to  take  a  house,  but 
that  the  defendant,  in  order  to  prevent  him,  ad- 
dressed a  letter  to  the  owner,  containing  the  fol- 
lowing passage:  "Mr.  Hulton  cannot  for  a  mo- 
ment suppose  that  Mr.  Salter  is  acquainted  with 
the  newspaper  particulars  relative  to  the  party  al- 
luded to  (the  plaintiff,)  otherwise  it  is  not  probable 
that  Mr.  Salter  would  introduce  an  acknowledged 
felon,  debauchee,  and  seducer,  into  the  neighbour- 
hood of  Angel  Row." 

Erskine,  for  the  defendant,  contended  that  he 
was  at  liberty  to  go  into  evidence  that  the  plaintiff 
had  been,  in  fact,  a  seducer,  not  as  an  answer  to 
the  action,  but  in  mitigation  of  damages.  He  ad- 
mitted, that  not  having  pleaded  the  truth  of  the 
words,  he  could  not  prevent  a  verdict  from  passing 
against  the  defendant ;  but  that  he,  having  referred 
to  newspaper  authority  for  the  words  used  in  the 
letter,  and  not  having  given  them  as  his  own,  or 
from  his  own  knowledge,  that  he  should  be  at  li- 

*  1  Camp.  4«. 

T  K.  v.  Toptnun,  4  T.  R,     K.  v.  Withers,  3  T.  R.  423.    R.  v.  Woodfall,  Burr. 
R.  v.  Almon,  Burr.  26S6. 
t  See  GiFdweod'a  casr.  T  each    G   C  L.  169.  S    4  F.5r--  -248. 


40o 

berty  to  give  the  fact  in  evidence  as  coming  from 
another  source,  to  which  he  referred  in  his  letter, 
and  as  the  slander  did  not  proceed  from  him,  it 
would  go  in  mitigation  of  damages. 

Lord  Ell mborough,  C.  J.  said,  that  as  the  plead- 
ings stood  on  the  record,  the  evidence  offered  was 
inadmissible  as  an  answer  to  the  action.  The  libel 
itself  was  proved,  and  there  was  no  justification 
that  entitled  the  defendant  to  a  verdict;  but  he 
added,  that  as  the  words  referred  to  a  newspaper, 
and  were  so  written  as  a  quotation  from  a  newspa- 
per, if  the  newspaper  could  be  produced,  he  would 
admit  it  as  evidence,  as  having  caused  the  defend- 
ant to  adopt  what  he  had  written  in  the  letter,  he 
having  so  referred  to  it. 

Where  the  defendant  has  not  pleaded  the  truth 
in  justification,  it  does  not  appear  perfectly  settled 
how  far  he  is  at  liberty  to  proceed  in  evidence 
tending  to  prove  the  truth  of  the  matter  publish- 
ed.^) 

An  action  was  brought*  for  a  libel  published  in 
the  Morning  Post,  charging  the  plaintiff  with  hav- 
ing been  concerned  with  a  person  of  the  name  of 
Knowles  in  procuring  money  from  the  relatives 
and  friends  of  persons  convicted  of  capital  offences, 
under  pretence  of  being  able  to  procure  pardons 

'  Knobcll  v.  Fuller  and  another,  sittings  after  T.  T-  1797-  [S.  C.  Peake'5 
l'\id.  App.  xxxii.  2d  Am.  Edit.] 


(1)  In  Williams  v.  Mayer  etui:  1  Binn.  92,  n.  and  Bufordv.  M'Luny,  1  Nott 
&.  M'Cord's  Uep.  268,  such  evidence  was  admitted,  and  the  case  of  Knobell  v. 
Fuller  recognised  ;  but  in  Cheat-wood  v.  Mayo,  5  Munf.  Rep.  16,  and  J&iilexmt- 
ler  v.  Harris,  6  Munf.  Rep.  465,  it  was  rejected- 


40t> 

through  the  interference  of  the  Duke  of  Portland,  in 
whose  service  the  plaintiff  was. 

The  defendant  pleaded  the  general  issue,  and  in 
mitigation  of  damages  offered  evidence  to  prove 
strong  grounds  of  suspicion  against  the  plaintiff. 
Eyre,  C.J.  at  first  doubted  whether  this  evidence 
was  admissible. 

Adair.  Serg.  for  the  defendant,  admitted  that  the 
defendant  could  not  give  in  evidence  on  the  ge- 
neral issue,  facts  which,  if  pleaded,  would  amount 
to  a  justification  ;  but  contended  that  they  might 
prove  facts  which  showed  there  was  cause  ot  sus- 
picion, and  therefore  proved  that  the  defendants 
were  not  induced  to  publish  this  paper  by  reason 
of  malice  against  the  plaintiff,  but  for  the  purpose 
of  conveying  information  to  the  public,  this  being 
a  concern  of  a  public  nature.  A  note  of  the  case 
of  Curry  v.  Walter  was  then  read,  in  which  his 
Lordship  admitted  the  distinction,  and  received 
such  evidence. 

Eyre,  C.  J.  said,  he  believed  in  that  case  he 
admitted  the  evidence  in  order  to  show  that  the 
defendant  had  not  in  fact  published  a  libel,  he 
having  only  published  the  proceedings  of  a  court 
of  justice,  which  the  court  afterwards  determined 
to  be  no  libel  in  point  of  law  ;  but  he  would  not 
deny  but  he  might  also  have  received  it  in  miti- 
gation of  damages  :  for  though  he  had  never  known 
the  evidence  given  in  an  action  for  a  libel,  yet  he 
had  always  understood  that  in  an  action  for  words 
the  defendant  might,  in  mitigation  of  damages,  give 
any  evidence  short  of  such  as  would  be  a  complete 


I 


107 

defence  to  the    action,    had    a     ustilication   been^ 
pleaded.  \ 

The    defendai  t  then   called  Mr.  Ford,  a   magis-      g 
trate,   to  prove,    that    on  the   examination  of  the      J 
plaintiff  before    him,  he  admitted  that  he   had  re- 
ceived  five  guineas  for  conveying   a  letter  to  the  . 
Duke;  and  the    Duke    himself    being    examined, 
said,   that  thinking  the  plaintiff  had    misconducted 
himself  in  that  respect,  he  had  discharged  him  from 
his  service. 

An  action  was  brought  for  a  libel*  published  in 
the  Morning  Herald,  imputing  to  the  plaintiff  the 
offence  for  which  Lord  Audley  suffered  in  the 
reign  of  Charles  I.  The  declaration  contained 
the  usual  exculpatory  averments,  and  stated  that 
the  plaintiff  had  lost  the  society  of  many  worthy- 
subjects  in  consequence  of  the  publication.  The 
defendant  pleaded  not  guilty. 

Upon  the  trial  before  Sir  J.  Mansfield,  C.  J  evi- 
dence was  offered  in  mitigation  of  damages,  that 
at  the  time  of  the  publication,  the  plaintiff  was 
generally  suspected  to  have  been  guilty  of  the 
charge  imputed,  and  that  in  consequence  of  this 
general  suspicion   his   acquaintance   had  deserted 

him. 

This  evidence  was  objected  to.  It  was  contended 
that  it  would  be  in  vain  to  bring  an  action  if  such 
evidence  were  permitted.  That  a  plaintiff  could 
not  come  prepared  to  defend  every  act  of  his  life. 
That  there  was  nothing  on  the  record  to  put  the 
character  in  issue;  and  that  to  admit  such  evidence  i 
would  only  be    giving    the  defendant    an  oppor-  f 

:    Karl  of  Leicester  v.  Walter,  2  C.  N.  P.  251. 


r 


\ 


\ 


M)8 

tunity  of  continuing  and  aggravating   the  original 
libel. 

Sir  J.  Mansfield,  C.  J.  admitted  the  evidence, 
observing,  that  he  could  never  answer  to  his  own 
satisfaction,  the  arguments  used  for  the  plaintiff. 
That  since  it  had  been  held  that  any  thing  short 
of  proving  the  evidence  imputed  in  the  libel  was 
evidence  in  mitigation,  he  did  not  know  how  to 
reject  the  witnesses.  Besides  that,  the  declaration 
stated  that  the  plaintiff  had  always  preserved  a 
good  character  in  society,  from  which  he  had  been 
driven  by  the  insinuations  in  the  libel.  That  the 
question  for  the  jury  was,  whether  the  plaintiff 
had  actually  suffered  this  grievance  or  not,  and 
therefore  that  evidence  to  show  that  his  character 
was  in  as  bad  a  situation  before  as  after  the  libel, 
must  be  admitted. 

The  learned  Judge,  in  summing  up,  directed 
the  jury  to  consider,  in  assessing  the  damages, 
whether  the  reports  which  had  been  proved  were 
sufficient  to  show  that  the  plaintiff  could  receive 
little  injury ;  and  that,  in  this  point  of  view,  it 
did  not  matter  whether  the  reports  were  weD  or 
ill  founded,  provided  they  got  into  many  men's 
mouths. (1) 

Though  the  admissibility  of  such  evidence  does 
not  seem  to  have  been  yet  decided  upon  argument, 
yet  the  opinions  of  the  eminent  persons  who  have 
deemed  such  to  be  admissible  at  Nisi  Prius,  leave 
no  doubt  upon  the  question,  especially  considering 


(1)  v.  Moor,  1  Mau.  &  Sehv.  285.     Alderman  v.  French,  I  Pick.  Rrp 

t.      Wnlrnft  v.  Hull,  6  Mass.  Ttep.  514,  confrrt. 


409 

that  the  last  learned  Judge,  before  whom  the  point 
arose,  conceived  himself  bound  to   the  admission, 
not  only  by  the  averments  upon  the  record,  but  also 
by  the  antecedent  decisions  on  the  subject.      Some 
difficulty,  however,  may   be  found   in  reconciling 
the  rule  laid  down  in  its  fullest   extent,  namely, 
that  any  matters  short  of  actual  proof  are  admis- 
sible   in    mitigation,    with    the   resolution  of    the 
Judges  in  Underwood  v.  Parks.*     The  evidence  of- 
fered in  the  cases  cited,  is  either  general  evidence 
of  the  plaintiff's  suspicious  character  previous  to 
the   publication,   or  of  particular   facts  tending  to 
show  his  actual  guilt.     In  the  former  case,  the  rea- 
son of  admitting  the  evidence  appears  plain  and 
obvious,  and  it  seems  to  be  immaterial  whether  the 
plaintiff  avers  his  previous  good  character,  and  the 
desertion  by ( his  acquaintance  or  not,  since  the  law 
willjpresume  that  he  has  a  good  one  till  the  con- 
trary be  proved,   and  will   equally  presume  a  loss 
after  proof  of  actionable  words ;  but  it  is  impossible 
to  say  that  the  defendant  has  not  a  right  to  give 
general  evidence  that  the  plaintiff  did  not  sustain 
any  loss  of  character  in  consequence  of  his  publi- 
cation, but  that,  on  the  contrary,  his  character  had 
previously  been  ruined,  since  the  loss  of  character 
is  the   very  basis  of  damages,    and  notice  to  this 
effect  by  a  special  plea  would  render  no  assistance 
to  the  plaintiffm  providing  counter-evidence,  since 
all  he  could  do  would  be  to  prove  by  general  tes- 
timony that   his   reputation   was  previously  good, 
which,  as  already  observed,  the'  law  presumes  for 

*  Stro.  12O0. 

52 


410 

him,  and  which  he  would  not  be  able  to  prove  by 
any  particular  facts.(l) 

But  particular  facts,  which  might  form  part  of  a 
chain  of  circumstantial  evidence  against  the  plain- 
tiff, in  case  he  were  indicted  for  the  offence  imputed, 
seem  to  fall  under  a  different  consideration. (2) 
First,  because  any  fact  of  such  a  nature  is  evidence 
rather  to  rebut  malice  than  to  affect  the  quantum  of 
damages ;  since,  though  malice  be  essential  to  the 
action,  it  is  not  the  criterion  and  measure  of  damage  ; 
and  though  circumstances  inducing  a  belief  of  the 
plaintiff's  guilt  in  the  mind  of  the  defendant,  take 
away  considerably  from  the  malignity  of  his  inten- 
tion ;  yet,  since  they  do  not  amount  to  a  justification, 
there-is  still  a  residuum  of  malice  sufficient  to  sup- 
port the  action.  And  secondly,  if  one  circumstance 
be  admitted,  tending. to  fix  actual  criminality  upon 
the  plaintiff,  a  second  and  third  could  not,  in  princi- 


(1)  Williams  v.  Calhnder,  1  Holt's  N.  P-  Rep.  307-  Viek  v.  Whitefield,  2 
Hayw.  Rep.  222.  Burford  v.  M'Luny,  1  Nott  &  M'Cord's  Rep.  268.  Sawyer 
r.  Eifferl,  2  Nott  &  M'Cord's  Rep.  511.  In  Ncio-York,  the  Supreme  Court 
were  divided  upon  a  question,  as  to  the  right  of  the  defendant  to  give  such  evi- 
dence in  an  action  for  a  Ubel.  Foot  v.  Tracy,  1  Johns.  Rep.  46-  Lord  Ellen- 
borough  received  the  evidence  in  Williams  v.  Cullender,  which  was  an  action 
for  a  libel.  That  the  plaintift"  is  himself  a  common  libeller  was  held  to  be  an 
answer  to  an  action  brought  by  him  for  a  libel,  in  the  case  of  Williams  v-  FauU 
dcr,  tried  before  Lord  Kknton,  and  reported  in  the  second  volume  of  the  Works 
of  W.  Gijjord,  Esq.,  (X.-York,  edit.,  1300,)  page  45.  But  Sir  James  Mans- 
field denied  the  authority  of  that  case  as  to  its  full  extent,  though  he  was  of 
opinion  that  evidence  of  the  fact  would  be  most  essential  with  respect  to  the 
damages,  (Finaerty  v-  Tipper,  2  Campb.  Rep.  77,)  but  the  Court  of  King's  Bench, 
in  a  very  recent  case,  decided,  that  other  libels  published  by  the  plaintiff  of  the 
defendant,  not  relating:  precisely  to  the  same  subject,  could  not  be  received  in 
evidence,  either  in  bar  of  the  action,  or  in  mitigation  of  damages.  May  v. 
Brown,  4  Dow.  &.  Ryl.  Rep-  670. 

(2)  Vicky.  Whitefield,  2  Hayw.  Rep.  222.     Lamed  v.  Buffmglon,  3  Mass 
Rep.  510-     Seethe  opinion  in  /?o"  v.  f-iphnni,  14  Mass-  Rep.  27!). 


ill 

pie,  be  rejected ;  and  it  would,  in  many  instances, 
be  difficult  for  a  judge  to  confine  the  evidence  with- 
in such  limits,  that  it  should  not  produce  on  the 
minds  of  the  jury  a  conviction  of  the  plaintiff's  guilt, 
or,  in  other  words,  to  avoid  infringing  upon  the  ge- 
neral rule  laid  down  by  all  the  judges.* 

Where  extrinsic  assertions  are  given  in  evidence  ^^l 
by  the  plaintiff,  to  show  the  defendant's  malice,  the  ^ 
latter  is  at  liberty  to  prove  the  truth  of  such  asser-    - 
tions  under  the  general  issue,  since  he  had  no  oppor- 
tunity of  pleading  the  matter  specially-! (1) 

A  member  of  parliament  may  be  called  upon  to 
state \  whether  another  member  took  part  in  a  par- 
ticular discussion,  but  cannot  be  examined  as  to 
what  was  said  in  the  course  of  the  debate.  (2) 

In  Curry  v.  Walter,§  a  barrister  was  subpoenaed, 
to  prove  that  he  had  made  a  motion  in  the  court  of 
King's  Bench  for  a  criminal  information  against  the 
plaintiff,  for  publishing  which  the  latter  brought  his 
action.  Upon  the  trial,  Eyre,  C.  J.  was  of  opinion 
that  it  was  improper  to  call  a  barrister  as  a  witness 
to  prove  such  a  circumstance,  but  that  the  party 

*  In  Underwood  v.  Parkes,  Str.  1200.  t  B.  N.  P.  10. 

t  5  Esp.  R.  136.  §  1  Esp.  450- 


(1)  Wame  v.  Chadioell,  2  Starkie's  Rep.  457. 

(2)  In  Coffin  v.  Coffin,  4  Mass.  Rep.  1,  a  member  of  the  House  of  Repre- 
sentatives of  Massachusetts,  was  examined  as  to  a  certain  conversation  that  took 
place  in  the  House,  between  himself  and  another  member,  without  any  objection 
as  to  the  nature  of  the  testimony  which  he  gave- 


•412 


ought  to  prove  it  by  other  means  ;  that  it  was  at 
the  option  of  the  counsel  to  give  or  withhold  his 
testimony.(l) 


• 


(1)  In  an  action  by  one  military  officer  against  another  for  a  libel  contained 
in  a  report  made  by  the  defendant  as  president  of  a  Court  of  Inquiry,  held  that 
the  report  of  a  Court  of  Inquiry,  or  a  copy  of  it  obtained  from  the  office  of  the 
Commander  in  Chief,  could  not  be  given  in  evidence  by  the  plaintiff,  because  the 
interests  of  the  State  require  that  such  documents  should  be  kept  inviolably 
secret,  and  that  their  disclosure,  by  production  as  evidence  in  Courts  of  Law, 
should  not  be  compellable  by  a  party,  nor  allowable  by  the  judge — not  on  ac- 
count of  any  consideration  merely  affecting  the  rights  of  the  parties,  but  because 
it  is  his  duty  judicially  to  exclude,  as  guardian  of  the  public  good,  all  such  mat- 
ters as  might  tend  to  injure  the  general  welfare — lest  political  secrets  might 
thereby  be  betrayed  to  the  injury  of  the  state.  Home  v.  Lord  Bentinck,  8  Price 
Hep.  226-  4  Moore's  Rep-  563.  See  also  Anderson  v.  Hamilton,  8  Price,  244,  n. 
Cooke  v.  Maxivell,  2  Starkie's  Rep.  183,  and  Wyall  v.  Gore,  Holt's  N.  P.  Rep. 
299,  upon  the  subject  of  privileged  communication's. 


U9 


CHAPTER  XXVIIL 


Proceedings  after   Verdict. 

Where  the  situation  in  which  the  defendant  was 
acting  at  the  time  of  speaking  the  words,  or  publish- 
ing the  libel,  was  such  as  to  rebut  the  implication  of 
malice,  and  no  express  malice  was  proved,  the 
court,  it  seems,  will,  after  a  verdict  for  the  plaintiff, 
grant  a  new  trial ;  and  this,  even  though  the  defend- 
ant knew  that  what  he  said  was  not  strictly  true, 
provided  the  variation  from  the  truth  be  immaterial 
to  the  interest  stated  to  have  been  affected.*  But 
where  the  false  assertion  of  the  defendant  is  materi- 
al, no  new  trial  will  be  granted,  though  the  defend- 
ant had  an  interest  in  the  subject  matter  affected.f 

Where  the  damages  are  so  outrageous  as  to  in- 
duce a  strong  presumption  of  partiality  in  the  jury, 
a  new  trial  will  be  granted  in  an  action  for  slander, 
as  well  as  in  other  cases,  though  in  such  an  action 
the  amount  of  the  loss  sustained  from  the  injurious 
act  depends  upon  circumstances  of  all  others  the 

-    \  Burr-  2422.  1  See  Smitb  v.  Spooner,  p-  23G- 


414 

most  appropriate  for  the  calculation  and  assessment 
of  a  jury.(l) 

In  the  case  of  Lord  Townsend  v.  Dr.  Hughes,* 
which  was  an  action  for  scandalum  magnatum,  the 
words  were,  "  He  is  an  unworthy  man,  and  acts 
against  law  and  reason."  The  jury  found  a  verdict 
for  the  plaintiff  with  4000/.  damages.  A  new  trial 
was  moved  for  on  these  grounds  : 

1.  Because  the  witnesses  who  proved  the  words 
were  not  persons  of  credit,  and  that,  at  the  time 
when  they  were  alleged  to  be  spoken,  many  clergy- 
men were  in  company  with  the  defendant,  and  heard 
no  such  words  spoken. 

2dly.  Because  one  of  the  jury  confessed  that  they 
gave  such  great  damages  to  the  plaintiff,  not  that  he 
was  damnified  so  much,  but  that  he  might  have  the 
greater  opportunity  to  show  himself  noble  in  the 
resisting  of  them. 

Sdly.  (Which  was  the  principal  reason,)  because 
they  were  excessive. 

North,  C.  J.  and  Wyndham  and  Scroggs,  Jus- 
tices, were  of  opinion,  that  no  new  trial  ought  to  be 
granted ;  that  in  a  civil  action,  where  the  words 
themselves  are  actionable,  without  an  averment  of 
special  damage,  the  jury  ought  to  take  into  consi- 
deration the  whole  of  the  damage  which  the  party 
might  sustain,  since  he  could  not  bring  a  fresh  ac- 
tion ;  that  it  was  impossible  for  the  court  to  tell  what 
value  to  set  upon  the  honour  of  the  plaintiff;  that 

*  2  Mod.  150. 


(1)  Bliss  v.  Lewis,  2  Bay's  Rep.  204.    Coffin  v.  Coffin,  4  Mass.  Rep.  1.    Cole- 
ynan  v.  Southwick,  9  Johns.  Rep.  45.    Soulhwkky.  Stevens,  10  Johns.  Rep.  443. 


410 

the  jury  were,  by  law,  judges  of  the  damages ;  and 
that  it  would  be  very  inconvenient  to  examine  upon 
what  account  they  gave  their  verdict. 

Atkins,  J.  dissented  from  his  brethren,  conceiving 
that  the  court  ought  to  compare  the  words  with  the 
damages,  and  to  consider  whether  they  bore  any 
proportion.  He  also  cited  the  case  of  Gouldston  v. 
Wood,  where  the  plaintiff,  in  an  action  on  the  case 
for  calling  him  a  bankrupt,  recovered  1500/.  da- 
mages, and  the  court  granted  a  new  trial,  because 
the  damages  were  excessive. 

In  the  same  case  it  was  said  by  Scroggs,  J.  that 
had  the  jury  given  but  one  penny  damages,  the 
plaintiff  could  not  have  obtained  a  new  trial  in  hopes 
to  increase  them. 

When  the  plaintiff's  title  to  recover  does  not  ap- 
pear perfect  upon  the  face  of  the  record,  the  defend- 
ant may  make  his  objection,  either  by  moving  in  ar- 
rest of  judgment  within  the  usual  time,  or  by  bring- 
ing a  writ  of  error. 

It  has  already  been  seen  what  are  the  rules  to  be 
observed  in  the  construction  of  the  defendant's  ex- 
pressions ;  that  they  are  to  be  taken  according  to 
their  plain  and  obvious  meaning,  and  in  the  sense  in 
which  the  hearers  or  readers  understood  them. 

After  a  verdict  for  the  plaintiff,  by  which  the  de- 
fendant's act,  meaning,  and  intention,  have  been  as- 
certained to  correspond  with  the  statement  upon  the 
record,  the  courts  will  not  listen  to  trial  exceptions, 
but  require  the  party  objecting  to  point  out*  a  sub- 
stantial objection  upon  the  face  of  the  proceedings. 

*  See  the  opinions  of  Lord  Ellenbovough,  Mr.  J.  Le  Blanc,  Lord  Mansfield. 
L.  G.  J.  Parker,  Lord  Holt,  C.  J.  Pratt,  Mr.  J.  Buller,  and  C  J.  Pe  Grey,  as 

hereinbefore  cited. 


416 

And,  in  general,  where  words  may  be  taken  in 
a  double  sense,  the  court,  after  a  verdict,  will  always 
construe  them  in  that  sense  which  may  support  the 
verdict.*  (1) 

Where  there  are  several  counts  in  a  declaration, 
and  entire  damages  are  given,  if  one  count  be  de- 
fective, judgment  must  be  arrested  for  the  whole, 
since  it  is  impossible  for  the  court  to  apportion  the 
damages,  and  to  say  what  abatement  ought  to  be 
made  in  respect  of  the  vicious  count.f(2) 

And  the  same  rule  holds  in  case  one  count  in  the 
declaration  contain  words  averred  to  have  been 
spoken  at  different  times.  As,  if  at  one  time  the 
defendant  call  the  plaintiff  "  traitor,"  and  at  another 
time  "  arrant  knave  and  cozener ;"  and  the  plaintiff 
allege^  the  words  to  have  been  spoken  at  different 
times,  as  several  causes  of  action,  if  the  jury  assess 
the  damages,  generally,  judgment  will  be  arrested. 

But  if  actionable  words  are  averred  to  have  been 
spoken  at  the  same  time  with  others  not  actionable, 
the  latter  are  considered§  as  laid,  merely  in  aggra- 
vation.^)     In  case  the  declaration  consist  of  se- 

*  8  Mod.  240.  t  Holt  v-  Scholefield,  6  T.  R.  694. 

J  Cro.  Eliz.  329.      Cro.  Car-  236,  237,  32S.     3  Wils.  185. 
§  3  Wils.  185.     Lloyd  v.  Morris,  Wiiies  Rep.  443.     Roll.  Ab.  576.     Moorr 
142,  708.    Cro.  Eliz.  328.  789.     1  Buls.  37. 


(1)  See  Wilson  v.  Stephenson,  2  Price,  282. 

(2)  1  Binn.  397.  Shaffer  v.  Kinlzer,  1  Binn.  537.  Cheelham  v.  TUlolson,  5 
Johns.  Rep.  430-  Hopkins  v.  Beedle,  Lyle  v.  Clason,  1  Caines's  Rep.  347,  583. 
Ckipmanv-  Cooke,  2  Tyl.  Rep.  465-  The  law  is  differently  settled  in  South 
Carolina,  Taylor  v.  Sturgingger,  2  Rep.  Const.  Court,  367-  JIogg\-  Wilson,  1 
Nott  &  M'Cord's  Rep.  216.     Neal  v.  Leiois,  2  Bay's  Rep.  204. 

(3)  "The  principle  is,  that  if  an  action  be  brought  for  speaking  words  all  at 
-'it-  time,  that  is,  nil  in  one  miint.  and  there  is  a  verdict  for  the  plaintiff,  though 


417 

vera!  counts,  in  one  of  which  the  words  are  not  ac- 
tionable, and  no  special  damage  be  averred,  or,  sup- 
posing it  to  be  averred,  the  finding  of  the  jury  as  to 
the  special  damage  be  for  the  defendant,  and  as  to 
the  rest  generally  for  the  plaintiff,  the  judgment 
would  be  erroneous,  and  might  be  avoided  b}r  mo- 
tion, or  reversed  by  writ  of  error.* 

Where,  therefore,  there  is  any  doubt  as  to  the 
validity  of  any  one  count, f  it  is  a  matter  of  pru- 
dence to  have  the  damages  assessed  several!}',  or  to 
take  a  verdict  upon  the  other  counts  only. (2)     In; 
Rich  v.  Holt,  the  words  laid  down  as  spoken  of  the 
plaintiff  at  one  time  were,  "  You  are  a  paltry  lawyer, 
and  use  to  play  on  both  hands  ;"  at  another,  "  He  is 
a  furtherer  and  maintainer  of  felonies."  The  defend- 
ant as  to  all  the  words,  except  those  in  italics,  plead- 
ed not  guilty,  and  as  to  those  a  justification.     The 
plaintiff  replied,  ds  injuria  propria,  fyc.     The  jury, 
upon  the  first  issue,  found  the  whole  of  the  words, 
and  assessed  damages  for  the  whole  ;  they  likewise 
found  the  second  issue  for  the  plaintiff,  assessing 
separate  damages.     The  court,  on  motion  in  arrest 
of  judgment,  decided,  that  the  words,   "  You  are  a 
paltry  lawyer,"  were  not  actionable,  but  held  that 
the  plaintiff  was  entitled  to  judgment  on  the  first 
issue.     It  should  seem,  however,  that  the  plaintiff 

*  See  the  cases,  2  Will-  Saund.  171.  d. 

Y  Burnet  v.  Wells,  12  Mod.  420.  ro.  J.  267. 


some  of  the  words  will  not  maintain  the  action,  yet  if  any  of  tbe  words  will,  the 
damages  may  be  given  entirely  ;   for  it  shall  be  intended,  that  the  damages  were 
given  for  the  words  which  are  actionable,  and  that  the  others  were  inserted  on'y 
for  aggravation."     Bloom  et  use.  v.  Bloom,  5  Serg.  &-R&wle,393.      Chipman  i 
Cook,  2  Tyl.  Rep.  45fi. 
(2)    i  Johns.  Rep.  433 

53 


418 

was  not  entitled  to  judgment  under  the  first  assess^ 
ment,  supposing  the  decision  to  have  been  correct, 
that  the  words  "  You  are  a  paltry  lawyer"  were  not 
actionable. 

For  the  words  to  be  considered  under  the  first 
issue  of  not  guilty  were  the  two  sets,  "You  are  a 
paltry  lawyer,"  and  "  He  is  a  furtherer  and  main- 
tainor of  felonies,"  the  words  in  italics  not  coming 
under  the  consideration  of  the  jury,  since  they  were 
confessed  ;  the  damages  under  the  first  assessment 
were,  therefore,  partly  given  for  the  words,  "  You 
are  a  paltry  lawyer,"  which  were  held  not  action- 
able. 

It  is  said  to  be  the  practice  in  the  Court  of  Com- 
mon Pleas,  to  award  a  venire  de  novo  where  judg- 
ment is  arrested  in  such  a  case,  upon  payment  of 
costs,  in  order  that  the  plaintiff  may  sever  his  da- 
mages.* But  in  the  case  of  Holt  v.  Scolefield,f 
in  the  King's  Bench,  a  venire  de  novo  was  refused. 

In  the  case  of  Beevor  v.  Hides,  %  Bathurst,  Justice, 
expressed  an  opinion,  that  where  the  words  in  one 
count  were  not  actionable,  yet  that  the  postea  might 
be  amended,  and  a  verdict  as  to  those  words  en- 
tered for  the  defendant,  upon  the  Judge's  certifying 
that  no  evidence  was  given  of  them  at  the  trial. 

But  Lord  Cambden  said  it  would  be  very  danger- 
ous, after  a  verdict  of  twelve  men  recorded  by  the 
Court,  to  refer  to  the  Judge's  notes  in  order  to  al- 
ter it,  and  he  thought  there  was  no  precedent  of 
such  a  case,  and  that  the  verdict  could  not  be  va- 
ried. 

*  2  Will.  Saund.  171.  d.     Barnes,  478,  430. 
6  T.  R.  61.     Sod  vkl.  Eddowes  v.  Hopkins.  Pon^.         I  2  Wils.  30& 


419 


The  general  practice  however  is,  where  general 
damages  have  been  given,  and  it  appears  that  the 
plaintiff  is  entitled  to  recover  upon  one  count,  though 
not  upon  others,  either  to  amend  the  postea,  which 
is  done  where  it  clearly  appears  that  no  evidence 
was  given  on  the  defective  counts,  or  by  awarding 
a  v.f.  de  novo, -where  such  evidence  has  been  given, 
in  order  that  the  plaintiff  may  ascertain  to  what  da- 
mages he  is  entitledfor  so  much  of  his  cause  of  com- 
plaint as  will  support  damages.  It  does  not  distinct- 
ly appear,  upon  what  principle  actions  for  slander 
form  an  exception  to  the  general  rule. 


CHAPTER  XXIX. 


Of  Costs. 

By  the  21  Jac.  1.  c.  16.  it  is  enacted,  that  "in 
all  actions  upon  the  case  for  slanderous  words,  to 
be  sued  or  prosecuted  in  any  of  the  courts  of  re- 
cord at  Westminster,  or  in  any  court  whatsoever, 
that  hath  power  to  hold  plea  of  the  same ;  if  the 
jury,  upon  the  trial  of  the  issue  in  such  action,  or 
the  jury  that  shall  inquire  of  the  damages,  do  find 
or  assess  the  damages  under  forty  shillings,  then 
the  plaintiff  or  plaintiffs  in  such  action  shall  have 
and  recover  only  so  much  costs  as  the  damages  so 
given  or  assessed  amount  unto,  without  any  further 
increase  of  the  same;  any  law,  statute,  or  usage, 
to  the  contrary  notwithstanding." 

This  statute  has  been  held  not  to  extend  to  ac- 
tions of  scandalum,  nor  to  those  where  the  special 
damage  is  the  gist  of  the  action,  as  in  case  of  slander 
of  title,*  nor  to  actions  for  libel.f(l) 

*  2  BI.  1062.  2.  Ld.  Raym.  1588.  Prac  Reg.  111.  Cro.  Car.  140-  Jon. 
196.  2  Ld.  Ray.  831.  1  Salk-  206.  7  Mod.  129.  Willes,  433.  Barnes,  132. 
2  H.  B.  531.     3  Burr.  1688.     Barnes,  142. 

t  Hall  v.  Warner,  T.  24  G.  3.    Tidd,  861. 


(1)  Act  of  27th  Marcb,  1713,  (1  Smith's  Laws  of  Pennsylvania,)  ace.  See 
also  Stuart  y.  Harkins,  3  Binn.  321-  Dwindells  v-  rfikin,  2  Tyl-  Rep.  78.  JVa~ 
'.n-mnnv.  Van  Benscotten,  13  Johns,  Hep.  425 


421 

But  where  the  words  are  iu  themselves  actiona- 
ble, the  case  is  within  the  statute,  though  special 
damage  be  averred ;  for  the  plaintiff  is  at  all  events 
entitled  to  a  verdict  for  the  actionable  words,  with- 
out proving  the  special  damage  ;  and  if  he  were  in 
such  case  entitled  to  costs,  where  the  damages  were 
under  40  shillings,  the  statute  might  in  all  cases  be 
evaded  by  a  suggestion  of  special  damage.  This 
construction  is,  however,  not  free  from  inconveni- 
ence, since  where  special  damage  has  actually  ac- 
crued, the  circumstance  of  the  words  being  in  them- 
selves actionable,  may  operate  to  the  plaintiffs  dis- 
advantage, and  he  may  be  placed  in  a  worse  situa- 
tion, by  that  very  presumption  of  law  which  was 
intended  for  his  advantage. 

And  where  it  clearly  appears,  as  by  a  special  ver- 
dict and  separate  assessment,  that  the  special  da- 
mage was  actually  considered  by  the  jury,  it  seems 
reasonable  that  the  plaintiff  should  have  full  costs, 
though  the  damages  do  not  reach  the  statutable 
limit.* 

Where  the  words  are  actionable,  and  other  mat- 
ter likewise  actionable  is  stated  as  a  distinct  injury, 
and  not  as  a  mere  consequence  of  the  words,  the 
plaintiff  is  entitled  to  full  costs;  as  where  the  de- 
claration, after  stating  the  words  imputing  felony, 
averred  that  the  defendant  procured  the  plaintiff  to 
be  imprisoned.! 

Where  there  are  different  counts  in  the  same  de- 
claration, some  containing  words  not  actionable,  and 
others  containing  actionable  ones,  and  special  da- 

*  1  Vent.  93.     1  Mod.  31-    2  Keb.  589-  J 

f  Str.  645.     Ld.  Ray.  1588.    Cro.  Car-  163.     Cro.  Car.  307. 


42^ 

mage  be  laid  referring  to  all  the  counts,  then  the 
plaintiff  will,  under  a  general  verdict,  be  entitled  to 
full  costs.  For  some  part  of  the  sum  assessed  must 
have  been  given  in  respect  of  the  consequential  da- 
mage,* 

The  statute  extends  to  damages  found  under  a 
writ  of  inquiry. f 

The  22d  and  23d  C.  2.  c.  9.  is  very  general  in 
its  terms,  which  comprehend  "  all  personal  ac- 
tions." By  this  statute  it  is  enacted,  that  in  such 
actions,  wherein  the  judge  at  the  trial  of  the  cause 
shall  not  find  and  certify  under  his  hand,  upon  the 
back  of  the  record,  that  an  assault  and  battery  was 
sufficiently  proved  by  the  plaintiff  against  the  de- 
fendant, or  that  the  freehold  or  title  of  the  land  men- 
tioned in  the  declaration  was  chiefly  in  question ; 
the  plaintiff,  in  case  the  jury  shall  find  the  damages 
to  be  under  the  value  of  40  shillings,  shall  not  re- 
cover more  costs  than  damages.  At  first  it  seems, 
that  the  statute  was  held  to  extend  to  all  personal 
actions  ;|  but  it  appears  now  settled,  that  it  is  con- 
fined to  actions  of  assault  and  battery,  and  for  local 
trespasses,  wherein  it  may  be  possible  for  the  Judge 
to  certify,  that  the  freehold  or  title  to  the  land  was 
chiefly  in  question. § 

This  statute,  therefore,  does  not  affect  the  present 
class  of  actions,  unless  indeed  some  cases  may  be 
imagined,  where  the  title  to  land  may  by  possibility 
come  in  question ;  as  if  the  plaintiff  should  declare 

*  2H.  B.  531.  t  2Str.  934. 

2Keb.  849.     3  Keb.  121.247- 
§  See  Tidd's  Prac.  (4  Edn.)  861.  where  the  authorities  on  the  subject  are 
Collected. 


423 

against  the  defendant  for  having  slandered  his  title, 
and  the  defendant  plead  a  special  justification,  aver- 
ring himself  to  be  entitled  to  the  freehold. 

And  since  the  case  of  slander  is  not  considered 
within  the  latter  statute,  a  justification  does  not  en- 
title the  plaintiff  to  full  costs,  where  the  damages 
are  below  40  shillings.* 


*  Halford  v.  Smith,  4  East,  567.     Barnes,  128.     2  Wils.  158; 


424 


CHAPTER  XXX. 


Of  the  Writ  of  Prohibition. 

A  prohibition  to  the  Ecclesiastical  Court  is 
grounded  either  upon  a  defect  in  their  jurisdiction, 
or  upon  some  irregularity  in  the  course  of  their  pro- 
ceedings. 

The  power  of  these  courts,  in  cases  of  defamation, 
was  expressly  recognised  by  13  E.  1.  st.  4.  "In 
cause  of  defamation,  it  hath  been  granted  already, 
that  it  shall  be  tried  in  a  Spiritual  Court,  when 
money  is  not  demanded,  but  a  thing  done  for  punish- 
ment of  sin ;  in  which  case  the  spiritual  Judge  shall 
have  power  to  take  knowledge,  notwithstanding  the 
king's  prohibition." 

Whence  it  appears  that  these  courts,  before  the 
passing  of  the  statute,  had  the  same  jurisdiction ; 
and  also  that  the  extent  of  the  jurisdiction  was  to 
deal  out  punishments  pro  salute  animce^  and  not  to 
award  any  temporal  compensation  in  the  way  of  da- 
mages for  loss  of  character.!  And  the  latter  posi- 
tion appears  still  more  clearly  from  the  st.  of  Arti- 
culi  Cleri  ;t  which  enacts  that,    "  In  defamations, 

*  2  Inst.  492.  t  lb-  X  9  Edw-  2.  c.  4- 


425 

prelates  shall  correct^  the  king's  prohibition  notwith- 
standing ;  first  enjoining  a  penance  corporal,  which, 
if  the  offender  will  redeem,  the  prelate  may  freely 
receive  the  money,  though  the  king's  prohibition  be 
showed." 

Under  these  statutes  it  has  been  held,  that  no  suit 
is  maintainable  in  the  Ecclesiastical  Courts  for  any 
slander*  not  of  spiritual  cognizance.  So  that  an 
imputation  of  perjury  is  not  a  ground  for  proceeding 
in  the  Spiritual  Court. 

In  the  instance  cited,  the  party  has  his  remedy- 
by  action  at  Common  Law  ;  but  provided  the  slan- 
der do  not  impute  any  offence  cognizable  by  the 
Spiritual  Court,  no  punishment  can  be  inflicted  for 
it  by  such  court,  though  the  slander  should  not  be 
a  ground  of  action  at  Common  Law.f  Thus  a  suit 
was  instituted  in  the  Spiritual  Court  for  calling  the 
plaintiff  a  false  knave,  and  a  prohibition  was  grant- 
ed. And  it  was  said,t  that  though  these  words  do 
not  imply  any  offence,  of  which  the  temporal  law 
takes  cognizance,  yet  being  also  not  of  spiritual 
cognizance,  the  Temporal  Courts  will  grant  a  pro- 
hibition that  the  Ecclesiastical  Courts§  may  not  ex- 
ceed their  jurisdiction. 

And  the  same  rule  holds  though  the  words  be 
spoken  of  an  ecclesiastical  person.  The  words 
spoken  of  a  parson  were,  "  IIe|j  has  no  sense  ;  he 
is  a  dunce  or  blockhead,  and  deserves  to  have  his 
gown  stripped  over  his  ears."     It  was  held  that  the 

*  2  Bum.  Ecc.  L.  120.     LJ.  Ray.  212-  397.     God.  517.     2  Salk.  C92-     )! 
Mod-  112- 

t  2  Ins-  493-  I  Ibid.  §  2  IffS-  69*. 

||   Oxter  v.  Parsons,  So!k.  C94- 

->4 


120 

defendant  was  not  punishable  in  the  Spiritual 
Court ;  for  a  parson  is  not  punishable  in  that  court 
for  being  a  knave  or  a  blockhead  more  than  any 
other  man  ;  and  it  was  said,  that  if  the  parson 
should  be  deprived  for  want  of  learning,  he  must 
bring  his  action  at  Common  Law. 

So  it  has  been  held,  that  to  call  a  dean  "  a  knave," 
was  not  suable  in  the  Spiritual  Court.* 

But  where  wordsf  spoken  of  a  parson  impute 
that  which,  if  true,  would  subject  him  to  censure 
in  the  Ecclesiastical  Court,  he  is  entitled  to  sue 
there. 

Where  words  of  spiritual  cognizance  are  coupled 
with  terms  of  abuse,  which  are  not  in  themselves 
actionable  in  the  temporal  courts,  no  prohibition 
will  be  granted  \\  so  that  no  prohibition  lies  in  a  suit 
for  the  words,  "  He  is  a  cuckoldy  knave  ;"§  and 
the  rule  is  the  same  though  it  should  be  suggested 
that  the  words  were  spoken  through  heat  and 
passion. || 

Where  the  words  themselves  are  of  mere  spiritual 
cognizance,  but  special  damage  ensues,  for  which  an 
action  is  brought  in  a  temporal  court,  it  seems  no 
prohibition  is  grantable. 

In  the  case  of  Evans  v.  Brown,  %  where  the  words 
were  of  mere  spiritual  cognizance,  a  prohibition  was 
moved  for  upon  a  suggestion  that  the  plaintiff  be- 
low had  brought  an  action  at  law  for  the  words, 
grounded  upon  special  damage  sustained  by  reason 

*  Holt-  R.  593.     Nelson  v.  Hawkins,  dean  of  Chichester. 

t  Clark  v.  Price,  11  Mod.  208.  I  2  Salk.  692- 

,§  Gobbett's  case,  Cro-  Car.  339.     <io!ds.  172. 

II  Ld-  Rav.  1136-  IF  Ld.  Ray.  110 i- 


427 

or  the  defendant's  speaking  them.  It  was  coiir 
tended,  that  this  was  like  the  case  where  one  calls 
a  woman  whore  and  thief :  in  that  case  she  shall 
not  have  an  action  in  the  Ecclesiastical  Court  for 
the  words,  though  she  might  for  the  word  whore ; 
because  it  being  joined  with  the  word  thief,  an  ac- 
tion lies  at  Common  Law  for  the  words.  That  in 
such  case  the  words  could  not  be  split,  and  an 
action  brought  at  Law  for  the  word  thief,  and  a  suit 
in  the  Ecclesiastical  Court  for  the  word  whore  ;  so 
that  here,  though  the  words  are  properly  suable  for 
ill  the  Ecclesiastical  Court,  yet  a  special  damage 
attending  the  speaking  of  them,  by  which  means  an 
action  lies  at  Common  Law  for  the  words,  they 
shall  not  proceed  for  the  speaking  in  the  Ecclesias- 
tical court.  But  the  court  refused  to  grant  a  prohi- 
bition. 

But  it  seems  that  in  general  the  Spiritual  Courts 
have  not,  in  case  of  defamation,  any  concurrent  ju- 
risdiction with  the  courts  of  Common  Law  ;  so  that 
if  the  same  words  impute  a  spiritual  and  temporal 
offence,  the  jurisdiction  of  the  former  court  ceases. 
Hollingshead  prayed  a  prohibition  to  stay  a  suit  in 
the  Spiritual  Court  for  defamation.  The  words 
were,  ."  Thou  art  a  bawd,  and  I  will  prove  thee  a 
bawd ;"  and  because  these  words  were  properly 
determinable  in  the  Spiritual  Court,  and  no  action 
lies  for  them  at  Common  Law,  the  prohibition  was 
denied.  But*  it  was  held,  that,  for  saying,  "  Thou 
keepest  a  house  of  bawdry  ;"  this  being  matter  de- 
terminable at  the  Common  Law  by  indictment,  siut 
shall  not  lie  in  the  Spiritual  Court. 

*  Cro.  Car-  229.     Str.  1100.     Cro.  Car.  320, 


428 

li  a  man  who  has  lands  by  descent  sue  in  the 
Spiritual  Court  for  words  of  bastardy,  a  prohibition 
lies  ;  for  the  words  tend  to  the  temporal*  disin- 
heritance of  the  plaintiff. 

But  it  seems  that  the  mother  would,  in  such  case, 
be  entitled  to  sue  in  the  Spiritual  Court,  for  the 
imputation  upon  her  own  chastity  contained  in  such 
a  charge  of  bastardy ;  since,  with  respect  to  her- 
self, the  slander  is  of  mere  spiritual  cognizance  ; 
and  even  where  the  mother  and  son  jointly  pre- 
ferred their  libel  for  such  words,  a  prohibition  was 
denied. f 

There  seems  to  be  a  stronger  reason  why  a  man 
should  not  sue  for  words  of  bastardy,  than  the  one 
assigned  in  Rolle,  namely,  that  he  is  not  punishable 
for  being  a  bastard. 

Where  the  same  words  imputed  incontinency,  and 
an  infection  with  the  venereal  disease  to  the  plaintiff, 
who  sued  in  the  Spiritual  Court,  a  prohibition  was 
granted  :|  although  the  first  words  were  of  ecclesi- 
astical cognizance. 

So  where  words  of§  incontinency  were  imputed  at 
the  same  time  with  others  of  felony,  a  prohibition 
was  moved  for  and  granted  for  the  whole. 

If  part  of  the  words  be  actionable,  it  seems  a  pro- 
hibition ivill  be  granted  for  the  whole,  though  the 
others  charge  a  spiritual  offence.  As  where  the  de- 
fendant said,  "You  are  a  whore  and  a  thief  ."|| 

Where  words  are  of  temporal  cognizance  from 

*  2  Roll.  Ab.  292.     Qu.  et  vid.  cap.  4. 
t  Lord  Ray.  1237.     11  Mod.  117. 

I  Lord  Ray.  446.  §  Legate  v.  Wright,  H.  10.  G.  2. 

2  Rol.  297.     1  Sid-  401.     3  Mod-  74. 


4^ 

the  custom  of  a  particular  place,  a  prohibition  will 
be  granted.  As  where  words  of  incontinence  are 
imputed  to  a  woman  in  London,  no  suit  is  maintain- 
able in  the  Spiritual  Court.*  If  it  appear,  however, 
upon  suggestion  supported  by  affidavit,  or  upon  the 
face  of  the  libel  itself,  that  the  parties  did  not  live 
within  the  scope  of  the  local  jurisdiction,  no  prohi- 
bition will  be  allowed. 

Thus,  in  the  case  of  W.  Johnson  v.  Bewick,f  the 
words  were,  "  Thou  art  a  whore,"  and  the  custom 
of  London  was  suggested ;  but  it  appeared  on  the 
face  of  the  suggestion  that  neither  of  the  parties 
lived  within  the  jurisdiction  of  London.  It  was 
urged,  that  it  would  be  hard  to  deprive  the  de- 
fendant of  the  power  of  punishing  the  plaintiff,  for 
having  spoken  these  malicious  and  defamatory 
words  in  a  court  where  she  may  proceed,  to  drive 
her  to  another  court,  where  she  cannot  proceed,  the 
plaintiff  living  out  of  the  jurisdiction  of  the  court. 
And  of  that  opinion  was  the  whole  court ;  and 
Holt,  C.  J.  said,  that  if  in  such  a  case  a  prohibition 
were  granted,  it  would  give  license  to  all  the  market 
women,  when  they  were  in  London,  to  defame  their 
neighbours,  without  fear  of  punishment. 

It  seems,  that  where  a  prohibition  is  prayed, 
grounded  upon  a  supposed  want  of  jurisdiction  in 
the  Spiritual  Court,  the  defect,  if  not  apparent  upon 
the  face  of  the  proceedings,  must  be  verified  by  affi- 
davit. { 


*  Ld.  Ray.  711.     Str.  1S7.  t  Ld.  Ray.  711. 

t  M.  12.  G.  2.     Hinds  v.  Thompson.      Driver  v-  Driver-     Hil-  12.   G.  2. 
And.  304 


in  the  case  of  Argyle  v.  Hunt,*  a  prohibition  was 
moved  for  on  the  ground  of  a  defect  of  jurisdiction 
appearing  on  the  face  of  the  libel,  where  it  was 
stated,  that  the  words,  which  were  of  incontinency, 
had  been  spoken  in  London.  But  the  court  said 
that  they  could  not  judicially  take  notice  of  the 
custom,  without  an  affidavit.  But  in  the  case  of 
Power  v.  Shaw,f  a  rule  to  show  cause  was  granted 
why  prohibition  should  not  go  for  calling  a  woman 
strumpet,  in  Bristol,  though  there  was  no  affidavit 
of  the  custom. 

It  seems,  generally,  that  any:}:  words  from  which 
the  intention  to  impute  whoredom  can  be  collected, 
will  be  a  good  ground  for  prohibition. 

The  Spiritual  Court  is  bound  to  allow  the  de- 
fendant the  advantage  of  any  justification  which 
would  have  availed  him  at  Common  Law.§ 

The  plaintiff  proceeded  in  the  Spiritual  Court  for 
the  words,  "  You  had  a  bastard."||  The  defendant 
pleaded  that  the  plaintiff  had  been  sentenced  for 
this  cause  of  having  a  bastard,  and  ordered  to  keep 
the  bastard,  at  the  sessions,  at  Norwich.  Notwith- 
standing this  the  court  proceeded,  and  the  defend- 
ant, in  the  Spiritual  Court,  moved  for  a  prohibition, 
suggesting  the  special  matter,  to  which  the  other 
party  demurred.  It  was  adjudged  that  the  prohi- 
bition should  stand:  for,  being  sentenced  to  be 
the  reputed  father  by  the  Justices  of  the  Peace, 
which  is  by  the  authority  of  the  Statute  Law,  that 
sentence  could   not  be  impeached  in  the  Spiritual 

*  Str.  187.  t  1  Wills.  62.  %  Str-  471. 

§  Com.  dig-  tit.  Prohibition,  G.  14.  ||  Cro.  J.  625.     2  Rol.  Rep.  821 


431 

Court,  or  elsewhere ;   and  all  are  concluded  to  say 
the  contrary  until  it  be  reversed. 

By  the  1st  Edw.  3.  st.  2.  c.  11.  "No  suit 
shall  be  made  in  the  Spiritual  Court  against  in- 
dictors.  The  Commons  do  grievously  complain, 
that  when  divers  persons,  as  well  clerks  as  lay  peo- 
ple, have  been  indicted  before  sheriffs  in  their 
turns,  and  alter  the  inquest  procured  be  delivered 
before  the  Justices  ;  after  their  deliverance  they  do 
sue  in  the  Spiritual  Court  against  such  indictors* 
surmising  against  them  that  they  have  defamed 
them,  to  the  great  damage  of  the  indictors,  where- 
fore many  people  of  the  shire  be  in  fear  to  indict 
such  offenders ;  the  king  will  that  in  such  case 
every  man  that  feeleth  himself  aggrieved  thereby, 
shall  have  a  prohibition  framed  in  the  Chancery 
upon  his  case." 

Though  the  statute  in  terms  comprehends  in- 
dictments before  sheriffs  in  their  turns  only,  it 
seems  that  it  extends  to  indictments  in  all  other 
courts,  and  to  all  witnesses  and  others  who  have 
affairs  in  temporal  courts.* 

By  27  G.  3.  c.  44.  No  suit  for  defamatory  words 
shall  be  brought  in  any  of  the  Ecclesiastical  Courts, 
unless  the  same  shall  be  commenced  within  six 
calendar  months  from  the  time  when  such  words 
shall  have  been  uttered. 

The  distinction  as  to  the  time  of  moving  in  pro- 
hibition is,  that  where  the  defect  alleged  is  extrin- 
sic of  the  libel  itself,  the  party  must  apply  before 
sentence  in  the  Spiritual  Court;  for  where  the  SpJ 

*  12  Co.  A\ 


43S 

ritual  Court  has  an  original  jurisdiction  which  is 
to  be  taken  away  upon  account  of  some  matter 
arising  in  the  suit  there,  after  sentence  the  party 
shall  never  have  a  prohibition,  because  he  himself 
hath  acquiesced  in  their  manner  of  trial,  which 
is  a  waiver  of  the  benefit  of  a  Common  Law  trial. 
But  if  the  defect  of  jurisdiction  appear  upon  the 
libel,  the  party  never  comes  too  late.* 

In  the  early  part  of  the  reign  of  Queen  Anne,  a 
prohibition  was  moved  for  to  stay  a  proceeding  in 
the  court  of  the  Earl  Marshal  against  the  defend- 
ant, for  having  said  to  the  plaintiff,  who  was  a 
knight,  "  You  a  knight  !f  you  are  a  pitiful  fellow, 
and  an  inconsiderable  feliow,"  to  the  great  scandal 
of  gentlemen  and  of  the  order  of  knighthood.  From 
the  judgment  given  by  Lord  Holt  upon  this  occa- 
sion, it  appears  that  a  prohibition  had  been  sent  to 
a  Court  of  Honour  some  years  before,  though  it 
had  then  been  contended  that  (under  13  Rich.  2. 
c.  2.)  the  proper  mode  of  resisting  any  encroach- 
ment by  such  courts,  was  by  a  writ  from  the  Privy 
Council  to  restrain  them  ;)  since  in  all  cases  of  en- 
croachments by  courts  of  inferior  jurisdiction,  the 
proper  remedy  is  by  writ  of  prohibition. 

With  respect  to  the  court  itself,  to  which  the 
prohibition  prayed  for  was  to  be  sent,  it  appeared 
that  it  had  been  held  before  the  Constable  and 
Marshal  till  the  13th  year  of  H.  8.  when  the  Con- 
stablet    was   attainted  of  treason,   and    the    office 


*  Argyle  v.  Hunt,  Sir.  187- 

f  Chambers  v.  Jennings,  7  Mod.  12' 

I  Stafford,  Duke  of  Buckingham. 


433 

extinguished;  but  that  the  pleas  relating  to  mat- 
ters of  law  had  since  been  held  before  the  Earl  Mar- 
shal only.  But  the  court  were  of  opinion,  that 
whatever  colour  there  might  be  to  hold  plea  of  some 
things  before  the  Marshal  alone,  there  was  no  pre- 
tence to  hold  plea*  of  words. 

*  Several  instances  of  great  oppression,  where  this  court  held  plea  of  words. 
*rp.  cited  in  Home  and  Ld.  Clarendon. 


55 


\M 


CHAPTER  XXXI. 


Of  the  Public  Wrong. 

The  civil  injury  and  the  means  of  obtaining  a  re- 
medy having  been  thus  inquired  into,  the  subject 
will  next  be  considered  in  its  relation  to  the  interests 
of  the  public. 

An  offence  against  the  public  peace,  may  consist 
either  in  an  actual  breach  of  the  peace,  or  in  doing 
that  which  tends  to  provoke  or  incite  others  to  break 
it.  Within  the  latter  description  are  contained  all 
attempts  to  produce  disorder  by  means  of  written, 
printed,  or  even  oral  communications,  made  for  the 
purpose  of  generally  weakening  those  religious  and 
moral  restraints,  without  the  aid  of  which,  mere 
legislative  prohibitions  would  prove  ineffectual ;  or 
for  the  more  open  and  direct  purpose  of  alienating 
the  minds  of  the  people  from  the  constitution  under 
which  they  live — of  rendering  them  dissatisfied  with 
its  administration,  and  thereby  inciting  them  to  acts 
of  sedition  and  rebellion ;  or  lastly,  for  the  purpose 
of  encouraging  or  provoking  particular  individuals 
to  commit  some  breach  of  the  peace  or  other  ille- 
gal  act. 


435 

In  considering  this  offence,  whose   outline  has 
been  thus  imperfectly  sketched,  a  distribution  ana- 
logous to  that  which  has  been  observed  in  the  pre- 
ceding part  of  this  treatise  naturally  presents  itself; 
and  it  will  be  inquired, 

1st.  What  circumstances  constitute  the  offence. 

2dly.  The  means  of  prevention  or  punishment  ap- 
pointed by  law. 

1st.  What  circumstances  constitute  the  offence  ? 

The  offence  consists  in  the  offender's  wilful  at- 
tempt to  produce  mischief  to  the  public  by  means  of 
oral  or  written  communications  having  such  a  ten- 
dency. The  consideration  of  this  branch  of  the  sub- 
ject, therefore,  relates, 

1st.  To  the  question — When  has  a  written,  oral, 
or  other  communication  a  tendency  to  produce  a 
breach  of  the  peace. 

2dly.  To  the  wilful  design  or  malice  of  the  of- 
fender. 

3dly.  To  the  overt  act  by  which  the  attempt  is 
made. 

1st.  When  has  a  written,  oral,  or  other  commu- 
nication a  tendency  to  produce  a  breach  of  the 
peace  ? 

The  intrinsic  essence  of  the  offence  may  consist 
in  the  tendency  of  the  communication  to  weaken 
religious  or  moral  restraints, — to  disgust  men  with 
the  civil  constitution  of  the  state,  or  the  adminis- 
tration of  its  affairs, — to  produce  some  public  incon- 
venience or  calamity, — or  to  incite  individuals  to  the 
commission  of  some  illegal  act. 

It  is  the  close  connexion  between  moral  obli- 
gation   and  opinions  on   religious   and   theological 


436 

topics,  which  as  it  were  invests  the  Temporal  Court? 
with  jurisdiction  over  the  latter,  which  are  appa- 
rently of  mere  spiritual  concern.  The  importance 
of  this  relation  is  strongly  illustrated  in  the  instance 
of  judicial  oaths.  The  foundation  of  these  is  a  be- 
lief in  a  superintending  Deity,  who  watches  over 
the  affairs  of  men,  and  who  will,  in  a  future  state, 
administer  rewards  and  punishments  with  reference 
to  their  conduct  here.  To  remove  therefore  so 
solemn  and  weighty  an  obligation,  would  be  to  over- 
throw, or  at  least  to  weaken,  that  confidence  in  hu- 
man veracity  so  necessary  for  the  purposes  of  so- 
ciety, without  which  no  question  of  property  could 
be  decided,  and  no  criminal  brought  to  justice.* 

Upon  the  dangerous  temporal  consequences  likely 
to  proceed  from  the  removal  of  religious  and  moral 
restraints,  the  punishment  for  blasphemous,  profane, 
and  immoralf  publications  is  founded,  without  any 
view  to  the  spiritual  correction  or  amendment^  of 
the  offender. 

Blasphemy  against  the  Almighty  by  denying  his 
being  or  providence,  contumelious  reflections  upon 
the  life  and  character  of  Jesus  Christ,  and  in  general 
flippant  and  indecorous  remarks  and  comments  upon 
the  scriptures,  are  offences  at  Common  Law  ;  for 
Christianity, §  it  has  been  said,  is  part  of  that  law. 
There  are  also  some  offences  against  Christianity  in 
particular,  which  will  be  afterward  noticed,  as  having 

*  Utiles  esse  opiniones  has  quis  negat  cum  intelligat  quam  multa  firmentur 
jurejurando  ;  quanta?  salutis  sint  foederum  religiones  ;    quam  multos  divini  sup- 
plicii  metus  a  scelere  revocarit  ;   quamque  saneta  sit  societas  avium  inter  ipsos 
Diis  immortalibus  interpositis  tarn  judicibus  tain  testibus.     Cic.  de  LL. 
t  11  Mod.  142.  I  4  Bl.  Comm.  59.     Fitz.  65.     2  Roll.  Ab.  78- 

§  4  Bl.  Com.  59.     1  Haw.  PI-  Cr-  7.     1  Vin,  293.     2  Str,  834- 


437 

been  defined  by  certain  statutes.  The  first  instance 
of  a  prosecution  for  words  reflecting  on  religion  oc- 
curred in  the  15th  year  of  James  I. 

Atwood*  was  convicted  upon  an  indictment  be- 
fore Justices  of  the  Pe ace  for  saving  "  the  religion 
now  professed  was  a  new  religion  within  50  years  ; 
preaching  is  but  prating,  and  hearing  of  service 
more  edifying  than  two  hours  preaching."  It  was 
assigned,  for  error,  that  this  was  an  offence  not  in- 
quirable  upon  indictment  before  Justices  of  the 
Peace,  but  only  before  the  Hu?h  Commissioners ; 
and  it  was  referred  to  the  Attorney- Generalf  to 
consider  thereof,  and  he  certified  that  it  was  not  in- 
quirable  before  them,  and  of  that  opinion  were  the 
whole  court. 

In  the  King  v.  Taylor, J  the  defendant  was  con- 
victed upon  an  information  for  saying  that  "  Jesus 
Christ  was^a  bastard, (1)  a  whoremaster;  religion 
was  a  chea*t ;  and  that  he  neither  feared  God,  the 
Devil,  nor  man."  Hale,  Chief  Baron,  observed, 
that  such  kind  of  wicked  and  blasphemous  words 
were  not  only  an  offence  against  God  and  religion, 
but  a  crime  against  the  laws,  state,  and  government, 
and  therefore  punishable  in  this§  court ;  that  to  say 
religion  is  a  cheat,  is  to  dissolve  all  those  oblations 
whereby  civil  societies  are  preserved  ;  and  that 
Christianity  is  parcel  of  the  laws  of  England  ;  and, 

*  Cr-  J.  421.      t  Sir  Henry  Yelverton.      t  Vent.  293.    3Keb.  Rep.  607. 
§  I.  e.ofK.  B. 


(1)  In  the  People  v.  Ruggles,  8  Johns.  Rep.  225,  the  defendant  was  foun< 
guilty,  upon  an  indictment  at  Common  Law,  for  speaking  tue  same  word? ■ 


438  V 

therefore,  to  reproach  the  Christian  religion  is  to 
speak  in  subversion  of  the  law.(l) 

In  the  cases  of  Clendon*  and  Hall,f  the  defend- 
ants were  convicted  of  having  published  libellous 
reflections  upon  the  Trinity,  and  it  does  not  seem 
to  have  been  doubted  in  those  cases  whether  the 
offence  was  of  a  temporal  nature. 

In  the  case  of  the  King  v.  Woolston,!  the  defend- 
ant had  been  convicted  of  publishing  five  libels, 
wherein  the  miracles  of  Jesus  Christ  were  turned 
into  ridicule,  and  his  life  and  conversation  exposed 
and  vilified.  It  was  moved  in  arrest  of  judgment, 
that  the  offence  was  not  punishable  in  the  Tempo- 
ral Courts.  But  the  court  declared  they  would  not 
suffer  it  to  be  debated,  whether  to  write  against 
Christianity  in  general  was  not  an  offence  of  tempo- 
ral cognizance.  The  counsel  for  the  defendant  fur- 
ther contended,  that  the  intent  of  the  book  was 
merely  to  show  that  the  miracles  of  Jesus  were  not 
to  be  taken  in  a  literal  but  in  an  allegorical  sense, 
and  therefore  that  the  book  could  not  be  considered 
as  aimed  at  Christianity  in  general,  but  merely  as 
attacking  one  proof  of  the  divine  mission.  But  the 
court  said  they  were  of  opinion,  that  the  attacking 
Christianity  in  this  way  was  destroying  the  very 
foundation  ot  it ;  and  that  though  there  were  pro- 
fessions in  the  book  that  the  design  of  it  was  to 

*  E.  T.  10  Ann,  cited  Str.  789.  t  H.  T.  79.     1  Str.  416. 

J  Str.  834.     Fitzgibb.  64.     Barnard,  162. 

(1)  In  Pennsylvania,  blasphemy  is  punishable  by  Statute  (Act  of  1700,  1 
Smith's  Laws,  6-)  and  also  in  New  Jersey,  (Perm.  Rev.  Code,  248.)     Delaioate, 

(1  Laws  Delaw.  174,  Edit-  1798.)     Massachusetts,  (Statute  of  1782, — ) 

and  Connecticut,  (2  Swift's  Dig.  344.) 


439 

establish  Christianity  upon  a  true  bottom,  by  consi- 
dering these  narratives  in  scripture  as  emblematical 
and  prophetical,  yet  that  these  professions  could 
not  be  credited,  and  that  the  rule  is,  allegatio  contra 
factum  non  est  admittenda. 

But  the  Court,  in  declaring  that  they  would  not 
suffer  it  to  be  debated  whether  writing  against 
Christianity  in  general  was  a  temporal  offence,  de- 
sired that  it  might  be  noticed  that  they  laid  their 
stress  upon  the  term  general,  and  did  not  intend  to 
include  disputes  between  learned  men  upon  parti- 
cular controverted  points  ;  and  Lord  Raymond,  C. 
J.  in  delivering  the  opinion  of  the  court  said,  "  I 
would  have  it  taken  notice  of,  that  we  do  not  med- 
dle with  any  differences  in  opinion,  and  that  we  in- 
terfere only*  where  the  very  root  of  Christianity  is 
struck  at." 

An  information!  was  filed  by  the  Attorney- Ge- 
neralj  against  Jacob  Hive  for  publishing  a  profane 
and  blasphemous  libel,  tending  to  vilify  and  subvert 
the  Christian  religion,  and  to  blaspheme  our  Saviour 
Jesus  Christ,  and  to  cause  his  divinity  to  be  denied, 
and  to  represent  him  as  an  impostor,  and  to  scandal- 
ize, ridicule,  and  bring  into  contempt,  his  most  holy 
life  and  doctrine ;  and  also  to  cause  the  truth  of  the 
Christian  religion  to  be  disbelieved  and  totally  re^- 
jected  by  representing  the  same  as  spurious  and 
chimerical,  and  a  piece  of  forgery  and  priestcraft. 

An  information§  was  exhibited  by  the  Attorney- 
General  ||  against  Peter  Annett,  for  publishing   a 

*  Fitzgibbon,  6G.  1  Hill.  Term,  29  G.  2.  1756.  Dig.  L.  L.  83. 

\  Charles  Pratt,  Esq.  afterwards  Chief  Justice  of  the  Common  Pleas 
5  Hil   2  Ceo.  3.  I'  Charles  Yorke.  Esq. 


440 

profane  and  blasphemous  libel,  intituled,  "The  free 
Inquirer,"  tending  to  blaspheme  Almighty  God,  to 
ridicule  and  discredit  the  holy  Scriptures,  and  par- 
ticularly the  Pentateuch,  representing  the  prophet 
Moses  as  an  impostor,  and  the  truths  and  miracles 
set  forth  and  recorded  in  the  Pentateuch,  as  impos- 
tures and  false  inventions. 

An  information*  was  exhibited  by  the  Attorney- 
Greneralf  against  John  Wilkes,  for  publishing  an 
obscene  and  impious  libel,  tending  to  vitiate  and 
corrupt  the  minds  and  manners  of  his  majesty's 
subjects  ;  to  introduce  a  total  contempt  of  reli- 
gion, modesty,  and  virtue ;  to  blaspheme  Almighty 
God  ;  and  to  ridicule  our  Saviour  and  the  Christian 
religion. 

In  the  King  v.  Williams,!  the  defendant  was  con- 
victed of  having  published  a  libel,  entitled  "  Paine's 
Age  of  Reason,"  which  denied  the  authority  of  the 
Old  and  New  Testament ;  asserted  that  reason  was 
the  only  rule  by  which  the  conduct  of  men  ought  to 
be  guided,  and  ridiculed  the  prophets,  Jesus  Christ, 
his  disciples,  and  the  scriptures.  Upon  being  brought 
up  to  receive  sentence,  Mr.  Justice  Ashhurst  ob- 
served, that  such  doctrines  were  an  offence  not  only 
against  God,  but  against  law  and  government,  from 
their  direct  tendency  to  dissolve  all  the  bonds  and 
obligations  of  civil  society  ;  and  that  upon  this 
ground  it  was,  that  the  Christian  religion  constituted 
part  of  the  law  of  the  land. 

Daniel  Isaac  Eaton  was  convicted  upon  an  in- 

*  Hil-  4.  G.  3.  t  Sir  Fletcher  Norton 

f  Before  Lord  Kenyon,  C  J.  at  the  Gnildhall,  1797- 


441 

formation  tiled  by  the  Attorney-General,*  of  having 
published  an  impious  libel,  representing  Jesus  Christ 
as  an  impostor — the  Christian  religion  as  a  mere 
fable — and  those  who  believed  in  it  as  infidels  to 
God.  Upon  being  broughtf  up  to  receive  the  judg- 
ment of  the  court,  though  his  counsel  addressed  the 
court  for  the  purp.se  of  mitigating  the  punishment, 
no  exception  was  taken  to  the  legality  or  propriety 
of  the  conviction. 

It  appears,  therefore,  to  have  been  long  perfectly 
settled,  that  blasphemy  against  the  Deity  in  gene- 
ral, or  an  attack  against  the  Christian  religion  indi- 
vidually, for  the  purpose  of  exposing  its  doctrines 
to  contempt  and  ridicule,  is  indictable  and  punish- 
able as  a  temporal  offence  at  Common  Law. 

With  respect  to  the  extent  ot  this  offence  and  the 
nature  and  certainty  of  the  words,  it  appears,  in  the 
first  place,  immaterial,  whether  the  publication  is 
oralt  or  written;  though  the  committing  mischiev- 
ous matter  to  print  or  writing,  and  thereby  affording 
it  a  wider  circulation,  would  undoubtedly  be  consi- 
dered as  an  aggravation,  and  affect  the  measure  of 
punishment. 

It  does  not,  in  principle,  seem  material,  whether 
the  direct  attack  is  made  upon  religion  in  general 
or  upon  some  particular  proof  or  evidence  in  sup- 
port of  it :  thus,  in  Woolston's  case,  the  publication 
was  considered  illegal,  though  the  immediate  and 
professed  object  of  the  writer  was  to  overthrow 
the  evidence  of  the  divine  mission  supplied  by  the 

*  Sir  Vicary  Gibbs,  Knt.  now  a  Justice  of  the  Common  Pleas. 
t  Easter,  52  G.  3. 

J  The  King  v-  Atwood,  Cro-  T.  421 .    The  King  v-  Taylor,  3  Keb-  Rep.  60? . 
Vent.  293- 


442 

miracles,  and  to  degrade  them  into  mere  enblem:* 
and  allegory.  The  court  were  then  of  opinion,  that 
a  general  and  deliberate  intention  to  subvert  Chris- 
tianity might  be  evidenced  by  an  attempt  to  weaken 
one  of  the  several  proofs  upon  which  its  credibility 
rests  ;  and,  indeed  it  would  be  inconsistent  to  inflict 
penalties  for  any  general  attack  upon  the  system 
of  Christianity,  and  yet  to  allow  its  foundations  to 
be  gradually  sapped  and  undermined  with  impunity. 
It  may  be  asked,  is  every  publication  which  tends 
to  weaken  any  particular  argument  which  has  been 
adduced  to  prove  the  existence  of  a  superintending 
Deity,  or  of  the  truth  of  Christianity,  illegal  and 
indictable  ?  The  principles  of  law  and  actual  deci- 
sions seem  to  afford  this  answer,  that  the  malicious 
publication  of  any  thing  which  tends  to  weaken 
men's  belief  in  an  overruling  Providence,  or  to  sub- 
vert Christianity,  is  indictable  ;  but  that  the  publica- 
tion must  be  maliciously  designed  for  that  end  and 
purpose.*  In  the  cases  cited,  the  defendants  were 
charged  with  having  exposed  Christianity,  and  its 
doctrines,  to  contempt  and  ridicuie,  tor  the  purpose 
of  introducing  a  general  disregard  of  religion.  And 
in  Woolston's  case  the  court  desired  it  might  be 
particularly  noticed,  that  they  laid  stress  upon  the 
term  general^  and  did  not  intend  to  include  disputes 

*  See  the  trial  of  the  publisher  of  Paine's  Age  of  Reason.  The  learned 
counsel  for  the  prosecution  (Mr.  Erskino)  observed,  "  Every  man  has  a  right 
to  investigate,  with  reason,  controversial  points  of  the  Christian  religion  ;  but 
no  man,  consistently  with  a  law  which  only  exists  under  its  sanctions,  has  a 
right  to  deny  its  very  existence,  and  to  pour  forth  such  shocking  and  insulting 
Invectives  as  the  lowest  establishments  in  the  gradations  of  civil  authority  ought 
not  toJ)e  subjected  to,  and  which  would  soon  be  borne  down  by  violence  and 
ipKrtredieiice  if  they  were-" 

t  2  Str-  854. 


443 

between  learned  men  upon  controverted  points. 
Both  the  language  of  the  indictments,  therefore,  and 
the  guarded  expression  of  the  court  in  the  above 
case,  show  that  it  was  never  a  crime,  in  the  contem- 
plation of  the  law,  seriously  and  conscientiously  to 
discuss  theological  and  religious  topics,  though  in 
the  course  of  such  discussions  doubts  may  have 
been  both  created  and  expressed  on  doctrinal 
points,  and  the  force  of.  a  particular  piece  of  scrip- 
tural evidence  casually  weakened. 

This  position  is  further  warranted  and  confirmed 
by  a  circumstance  notorious  to  all  literary  men, 
that  not  only  particular  and  subordinate  matters 
of  belief  have  been  canvassed  and  discussed  by  the 
learned,  but  that  even  the  authenticity  of  particular 
miracles  has  been  questioned,  and  the  authority  of 
most  important  texts  disputed;  yet  these  discus- 
sions have  never  been  considered  as  libellous, 
though  frequently  tending  to  weaken  particular 
evidences  ;  and  persons  of  a  different  religious  per- 
suasion, as  Jews,  though  in  supporting  their  own 
doctrines  they  must  necessarily  deny  the  authority 
of  other  religious  systems,  have  never  been  pu- 
nished as  libellers  at  Common  Law  for  so  doing.* 

With  respect  to  the  degree  of  force  and  inten- 
sity necessary  to  render  such  a  tendency  criminal, 
it  is  evident  that  no  limitation  can  be  made.  The 
law  cannot  measure  the  degree  of  tendency  to  pnv 
duce  disorder  which  an  impious  libel  carries  with 
it;  and  were  it  otherwise,  any  limitation  would  be 
absurd,   and  the   law  could  not   tolerate  mischief 

*   Enactments,  3  Wjl 


444 

because  it  did   not  amount  to  a  certain  degree  or 
limit. 

Upon  the  whole,  it  may  not  be  going  too  far  to 
infer  from  these  principles  and  decisions,  that  no 
author  or  preacher  who  fairly  and  conscientiously 
promulgates  the  opinions  with  whose  truth  he  is 
impressed,  for  the  benefit  of  others,  is,  for  so  doing, 
amenable  as  a  criminal:  that  a  malicious  and  mis- 
chievous intention  is  in  such  case  the  broad  boun- 
dary between  right  and  wrong  ;  and  that  if  it  can  be 
collected  from  the  offensive*  levity  with  which  so 
serious  a  subject  is  treated,  or  from  other  circum- 
stances, that  the  act  of  the  party  was  malicious, 
then  since  the  law  has  no  means  of  distinguishing 
between  different  degrees  of  evil  tendency,  if  the 
matter  published  contain  any  such  tendency,  the 
publisher  becomes  amenable  to  justice. 

The  quantity  of  mischief  likely  to  flow  from  a 
given  publication  cannot  be  taken  into  considera- 
tion in  defining  the  offence;  arguments  levelled 
against  religion  or  moral  obligation,  may  be  trite, 
or  their  force  despicable,  still  minds  may  be  found, 
upon  which  the  vilest  sophistry  may  produce  an 
evil  effect ;  and  the  weakest  mind,  as  well  as  the 
weakest  person,  has  a  claim  to  the  protection  of 
the  law  ;  if  the  poison  can  operate,  the  malicious 
distribution  of  it  ought  to  be  and  is  forbidden. 

The  legislature  has  nevertheless  deemed  it  pro- 
per to  fortify  the  Common  Law  restraint  by  seve- 
ral penal  enactments  applicable  to  particular  per- 

*  Sir  William  Blackstone,  in  his  Comment  upon  the  Statutes  cited  below, 
observes,  "It  is  clear  that  no  restraint  should  be  laid  upon  rational  and  dispas- 
sionate discussions  of  the  rectitude  and  propriety  of  the  established  mode  of 
worship,  yet  contumely  smd  contempt  aTe  what  no  establishment  can  tolerate'1 
4  Bl.  Com.  51. 


-l4o 

sons  and  cases.  By  statutes  1  Ed.  6.  c.  I.  and  1 
Eliz.  c.  1.  s.  14.  whoever  reviles  the  sacrament  of 
the  Lord's  supper  shall  be  punished  by  fine  and 
imprisonment. 

By  stat.  1  Eliz.  c.  2.  if  any  minister  shall  speak 
any  thing  in  derogation  of  the  book  of  Common 
Prayer,  he  shall,  if  not  beneficed,  be  imprisoned  one 
year  for  the  first  offence,  an  I  tor  life  the  second  ; 
and  if  he  be  beneficed,  he  shall  tor  the  first  offence 
be  imprisoned  six  months,  and  forfeit  a  year's  value 
of  his  benefice  ;  for  the  second,  he  shall  be  deprived 
and  suffer  one  year's  imprisonment ;  and  for  the 
third,  shall  in  like  manner  be  deprived,  and  suffer 
imprisonment  for  life.  And  if  any  person  whatso- 
ever shall,  in  plays,  songs,  or  other  open  words, 
speak  any  tiling  in  derogation,  depraving  or  despis- 
ing of  the  said  book,  or  shall  forcibly  prevent  the 
reading  of  it,  or  cause  any  other  service  to  be  read 
in  its  stead,  he  shall  forfeit  for  the  first  offence  100 
marks,  for  the  second  400,  and  for  the  third,  shall 
forfeit  all  his  goods  and  chatties,  and  suffer  impri- 
sonment for  life. 

By  the  IS  Eliz.  c.  12.  a  person  ecclesiastical,  ad- 
visedly affirming  any  doctrine  contrary  to  the  arti- 
cles established  at  a  convocation,  holden  at  London 
in  the  year  1562,  is  liable  to  deprivation,  if  he  persist 
in  his  error. 

By  the  3  J.  I.e.  21.  whoever  shall  use  the  name 
of  the  Holy  Trinity  profanely  or  jestingly  in  any 
stage  play,  interlude,  or  show,  shall  be  liable  to  a 
penalty  of  10/. 

Bv  1  Will.  3.  c.  18.  s.  17.  whoever  shall  deny, 


44tf 

in  his  preaching  or  writing,  the  doctrine  of  the 
Trinity,  shall  lose  all  benefit  of  the  Toleration  Act. 

By  stat.  9  and  10  Will.  3.  c.  32.  if  any  person 
educated  in,  or  having  made  profession  of  the 
Christian  religion,  shall  by  writing,  printing,  teach- 
ing, or  advised  speaking,  deny  the  Christian  reli- 
gion to  be  true,  or  the  holy  scriptures  to  be  of  di- 
vine authority,  he  shall,  upon  the  first  offence,  be 
rendered  incapable  to  hold  any  office  or  place  of 
trust ;  and  for  the  second,  be  rendered  incapable  of 
bringing  any  action,  being  guardian,  executor,  le- 
gatee, or  purchaser  of  lands,  and  shall  suffer  three 
years  imprisonment  without  bail ;  but  if  the  delin- 
quent shall,  within  four  months  after  the  first  con- 
viction, publicly  renounce  his  error  in  open  court, 
he  is  discharged  for  that  once  from  all  disabilities. 

A  person  offending  under  this  statute  is  still  in- 
dictable at  Common  Law,  since  a  statute  inflicting 
a  new  punishment  does  not  take  away  the  old  one, 
unless  it  change  the  offence,*  or  make  it  of  a  differ- 
ent nature. (1) 

*  2  Str.  834.     Barnard.  K.  B.  162.     R.  v.  Williams,  1797.     R.  v.  Eaton, 
1812. 


fl)  The  King  v.  R.  CarlUe,  3  Barn.  &  Aid.  161, 


+4? 


CHAPTER  XXXII. 


Of  Publications  tending  to  subvert  Morality. 

It  is  now  fully  established,  that  any  immodest  and 
immoral  publication,  tending  to  corrupt  the  mind, 
and  to  destroy  the  love  of  decency,  morality,  and 
good  order,  is  punishable  in  the  temporal  Courts, 
though  some  doubt,  as  will  appear  from  a  brief  re- 
view of  the  cases,  seems  formerly  to  have  been  en- 
tertained upon  this  subject. 

Sir  Charles  Sedley*  was  indicted  for  having  ex- 
posed his  naked  body  in  a  balcony  in  Covent  Gar- 
den, and  for  having  committed  other  indecent  acts 
before  a  great  multitude  of  people.  The  indictment 
was  openly  read  to  him  in  court ;  and  afterward,  on 
being  required  to  take  his  trial  at  bar,  he  submitted 
to  it.  From  the  different  reports  of  this  case  it  ap- 
pears, that  alter  the  abolition  of  the  Star-chamber, 
the  Court  of  King's  Bench  was  considered  as  the 
custos  morum,  to  whom  the  cognizance  of  such 
offences  most  properly  belonged ;  and  although  it 
was  afterward  contended,  that  judgment  was  gr»en 
against  the  defendant,  on  account  of  the  personal 

*  Keb-  R.  720.     2  Sir.  791-     Foster,  99-     Mich.  15  C  S. 


44§ 

violence  he  used  in  throwing  down  bottles  upon  the 
mob,(l)  yet  from  the  language  of  the  reporters  it 
clearly  appears,  that  the  Judges  considered  the  of- 
fence to  have  been  committed  against  modesty  and 
good  manners,  and  found  it  necessary  to  interfere  in 
those  profligate  times*  to  punish  such  immodest 
practices,  which  the  Court  s;iid  were  as  frequent, 
as  if  not  only  Christianity  but  morality  also  had  been 
neglected. 

Hillf  was  indicted  for-  publishing  some  obscene 
poems  of  Lord  Rochester  tending  to  the  corruption 
of  youth,  but  going  abroad  he  was  outlawed. 

ReadJ  was  indicted  for  publishing  a  lascivious 
and  obscene  libel,  and  was  tried  and  convicted  be- 
fore Ld.  Holt,  C.J.  It  was  moved  in  arrest  of  judg- 
ment, that  the  offence  was  merely  of  spiritual  and 
not  of  temporal  cognizance ;  Ld.  Holt  was  of  opi- 
nion, that  the  offence  ought  to  be  punished  in  the 
Ecclesiastical  Court,  and  that  the  temporal  Courts 
could  not  interfere,  since  there  was  no  precedent 
for  it  ;§  and  Powell  J.  regretted  that  it  was  not  pun- 
ishable at  Common  Law,  since  it  certainly  tended  to 
the  corruption  of  maimers.     And  it  does  not  ap- 

*  During  this  licentious  reign,  it  appears  to  have  been  of  little  use  to  convict 
offenders  of  this  description  ;  for  though  there  were  many  prosecutions  against 
the  players  for  immodest  plays,  they  had  interest  enough  to  get  the  proceedings 
stayed  before  judgment      Frein.  Ent.  209.  .13,  214,215. 

t  Str.  790.     Dig  L.  L.  60.     Mich.  10  W.  3. 

J  Easter,  6  Ann.  Fost-  Kep.  98,  99. 

§  Sir  C.  Sedley's  case  seems  to  be  a  precedent  in  principle. 


(1)  The  same  argument  was  used  in  behalf  of  the  defendant,  in  the  case  Of 
Comm.  v.  Skarpless  et  at-  2  Serg.  &  Rawle,  91,  but  without  success- 


449 

pear,  that  any  judgment  was  ever  pronounced  against 
the  defendant.* 

The  Attorney-general  exhibited  an  information 
against  Curl,  for  printing  and  publishing  an  obscene 
book,  intituled,  "Venus  in  the  Cloister,  or  the  Nun 
in  her  Smock."  The  defendant  having  been  found 
guilty,  it  was  moved  in  arrest  of  judgment,  that 
the  offence  was  of  mere  spiritual  cognizance,  that 
in  the  reign  of  Charles  II.  there  was  a  run  of  ob- 
scene writings,  for  which  no  prosecutions  were  in- 
stituted in  the  temporal  courts,  and  Read's  case  was 
cited. 

It  was  answered  by  the  Attorney-general,!  that 
to  destroy  morality  is  to  destroy  the  peace  of  go- 
vernment, since  government  is  no  more  than  public 
order ;  that  the  Spiritual  Courts  punish  only  spi- 
ritual defamation  by  words,  but  that  if  it  be  reduced 
to  writing,  it  is  a  temporal  offence  punishable  as  a 
libel. 

The  Judges  had  some  difficulty  at  first  in  giving 
judgment  against  the  defendant,  chiefly  on  account 
of  Read's  case  ;  but  afterward  they  gave  it  as  their 
unanimous  opinion,  that  this  was  a  temporal  offence. 
They  said,  it  was  plain,  that  the  force  used  in  Sir 
C.  Sedley's  case  was  but  a  small  ingredient  in  the 
judgment  of  the  Court,  who  fined  him  2000/.  And 
that  if  the  force  was  all  they  went  upon,  there  was 
no  occasion  to  talk  of  the  Court's  being  custos  mo- 
rum  of  the  King's  subjects  ;  that  if  Read's  case 
were  to  be  adjudged,  they  should  rule  it  otherwise  ; 
and,  therefore,  gave  judgment  for  the  Kin«:. 

*  2  Ftj\  792-  1  Sir  Philip  Yorkc 

57 


450 

An  information*  was  granted  against  John 
Wilkes,  for  printing  and  publishing  an  obscene  and 
impious  libel,  entitled  "An  Essay  on  Woman." 
Upon  which  he  was  convicted,  and  sentenced 
to  pay  a  fine  of  500/.,  to  be  imprisoned  for  twelve 
months,  and  to  find  security  for  his  good  behaviour 
for  seven  years. 

Since  the  decision  in  Curl's  case,  it  seems  to 
have  been  settled,  that  any  publication  tending  to 
corrupt  the  morals,  is  punishable  by  indictment; 
and  a  great  number  of  convictions  have  since  taken 
place  for  publishing  and  vending  immodest  books 
and  pictures.(l) 

With  respect  to  the  extent  of  the  offence  and  mode 
of  publication. 

Although  many  vicious  and  immoral  acts  are 
not  indictable,  yet  if  they  tend  to  the  destruction  of 
morality  in  general,  if  they  do  or  may  affect  the  mass 
of  society,  they  become  offencesf  of  a  public  na- 
ture. In  the  cases  referred  to,  with  the  exception 
of  Sir  C.  Sedley's,  the  defendants  were  indicted  for 
printed  libels ;  the  principle,  however,  of  those 
cases,  and  the  express  decision  in  Sir  C.  Sedley's, 
seem  to  comprehend  oral  communications  when 
made  before  a  large  assembly,  such  as  the  perform- 
ance of  an  obscene  play,  which  offence,  it  seems, 
has  formed  the  ground  of  many  prosecutions.  £  In 
this  case,  as  well  as  in  that  of  blasphemous  and  ir- 

*  4  Burr.  2527.  t  Sid-  168.  %  Str.  790- 


<1)  Ccmm.  t.  Sharpless  et  al.  2  Serg.  &  Rawle,  9h 


431 

religious  publications,  any  tendency  to  produce 
immorality  is  sufficient ;  since,  for  the  reasons  be- 
fore assigned,  the  intensity  and  degree  of  that  ten- 
dency cannot  constitute  the  boundary  between 
guilt  and  innocence,  and,  therefore,  cannot  form  a 
subject  for  legal  inquiry.*(l) 

*  i.  e.  not  before  a  jury. 


(1)  Showing  an  indecent  picture  in  a  private  room  is  a  sufficient  publication. 
Coffiro.  v.  Sharpless  et$U.  2  Serg.  &  Rawle,  91. 


CHAPTER  XXXIil. 


Publications  against  the  Constitution,  fyc. 

Publications  tending  to  excite  popular  tu- 
mult, sedition,  or  rebellion,  by  engendering  distrust 
or  dissatisfaction  in  the  minds  of  the  subject,  relate 
to  alleged  defects  in,  or  misrepresentation  of  the 
constitution  and  form  of  government;  or  to  the 
personal  imperfections,  inabilities,  and  mismanage- 
ment of  those  who  are  intrusted  with  its  adminis- 
tration :  and  reflections  upon  the  latter  affect  them 
either  in  their  conduct  in  office,  or  as  individuals. (1) 

In  the  first  of  these  cases,  since  the  opinions 
communicated  are  entirely  abstracted  from  all  per- 
sonal allusion,  they  do  not  very  frequently  become 
the  object  of  legal  inquiry ;  they  are  too  specu- 
lative, for  the  most  part,  to  generate  popular  heat, 
unless  they  come  into  close  contact  with  personal 
rights  or  privileges. 

By  the  13th  of  Eliz.  c.  1.  it  is  a  misdemeanor, 
and  punishable  with  forfeiture  of  goods  and  chat- 


(1)  The  Courts  of  the  United  States,  have  no  common  Law  jurisdiction  in 
cases  of  libel  against  the  Government  of  the  United  States.  17.  States  y.  Hnd~ 
son  et  al.  7  Crancb,  32. 


453 

ties,  for  any  person  to  hold,  altirui,  or  maintain, 
that  the  Common  Laws  of  the  realm,  not  altered 
by  parliament,  ought  not  to  direct  the  right  of  the 
crown  of  England. 

By  the  5th  Ann,  c.  7.  s.  7.  it  is  made  high  trea- 
son to  affirm  by  writing,  or  printing,  that  the  king 
is  not  the  lawful  and  rightful  king  of  the  realm,  or 
that  any  other  person  has  title  to  the  same  other- 
wise than  according  to  the  Bill  of  Rights,  the  Act 
of  Settlement,  and  the  Act  of  Union,  or  that  Par- 
liament has  not  authority  to  limit  the  descent  of  the 
crown. 

One  of  the  earliest  cases  in  which  an  opinion 
is  given  upon  the  indictable  quality  of  words  ab- 
stractedly reflecting  upon  the  constitution,  appears 
to  have  been  given  in  the  forty  first  year  of  Eliza- 
beth ;  where  it  was  adjudged,  that  no  indictment 
lay  for  saying  that  the  laws  of  the  realm  were  not 
the  laws  of  God,  because  true  it  is  they  are  not  the 
laws  of  God  ;  but  that  it  would  be  otherwise  to  say 
that  the  laws  of  the  realm  are  contrary  to  the  laws* 
of  God. 

In  the  15thf  year  of  Ch.  2.  Brewster  was  a  se- 
cond time  convicted  for  printing  and  publishing  a 
libel,  called  "  The  Phoenix ;  or  the  solemn  League 
and  Covenant,"  in  which  it  was  declared,  that  a 
king  abusing  his  power,  may  be  opposed, — that  if 
he  attempt  to  enforce  his  encroachments  by  arms, 
he  may.  be  resisted,  because  he  has  violated  the 
contract  and  covenant  made  between  himself  and 
the  people,  and  that  the  breaking  this  covenant  was 
a  greater  sin  than  breaking  a  commandment. 

*  2  Rol.  Ab.  78.  t  Hill.  15  Ch.  2d.  K.  B.  Dig.  L.  L.  72, 


4<3i 

The  defendant*  was  convicted  on  an  information 
charging  him  with  having  published  concerning  the 
government  of  England,  and  the  traitors  who  ad- 
judged King  Charles  I.  to  death;  that  the  govern- 
ment of  the  kingdom  consists  of  three  estates,  and 
that  if  a  rebellion  should  happen  in  the  kingdom, 
unless  that  rebellion  was  against  the  three  estates, 
it  was  no  rebellion.  It  was  moved  in  arrest  of 
judgment,  that  there  can  be  no  rebellion  against 
the  king,  but  it  must  be  against  the  three  estates., 
who  are  all  united  in  the  king.  But  the  court  over- 
ruled the  objection,  since  by  13  C.  2.  c.  1.  it  is 
expressed,  that  neither  one  nor  both  Houses  of  Par- 
liament can  make  war  against  the  king,  under  any 
pretence  whatever ;  and  that  though  there  be  three 
estates  as  to  making  laws,  there  is  but  one  autho- 
rity as  to  war. 

And  the  court  supposing  that  the  words  tended 
to  set  on  foot  the  position  upon  which  the  war,  le- 
vied in  1641  by  the  two  houses  against  the  king, 
was  grounded,  were  much  displeased  that  counsel 
would  undertake  to  defend  them. 

The  king  had  judgment,  and  the  defendant  brought 
error  in  Parliament. 

So  a  treatise  upon  hereditary  right  has  been  held 
to  be  a  libel,  though  containing  no  reflection  upon 
the  existing  government. f 

Tutchin  was  convicted  $  for  publishing,  in  a  pa- 
per called  the  Observator,  that  there  were  misma- 
nagements in  the  government ;  that  for  such  they 
had  a  right  to  call  their  governors  to  account,  to  dis- 

+   R.  ?.  Harrison,  3  Keb.  841.     Ventr.  324.     Dig.  L.  L.  66. 

t  The  Queen  v.  Bedford,  2  Str.  789. 

J  2  Ld.  Ray.  1061.     Salk-  51.     6  Mod,  268- 


465 

place  the  ministers,  dethrone  the  reigning  sovereign, 
and  to  transfer  their  allegiance  to  whom  they 
pleased. 

Dr.  Browne*  was  convicted  for  writing  a  libel, 
entitled  "Mercurius  Politicus,"  which  asserted, 
that  "the  late  revolution  was  the  destruction  of  the 
laws  of  England." 

Richard  Nuttf  was  convicted,  upon  an  informa- 
tion, for  publishing  a  libel,  entitled  "  The  London 
Evening  Post,"  in  which  it  was  suggested,  that  the 
revolution  was  an  unjust  and  unconstitutional  pro- 
ceeding ;  and  the  limitation  established  by  the  act 
of  settlement  was  represented  as  illegal ;  and  that 
the  revolution  and  settlement  of  the  crown,  as  by 
law  established,  had  been  attended  with  fatal  and 
pernicious  consequences  to  the  subjects  of  this  king- 
dom. 

In  the  prosecutions  of  Shebbeare,|  upon  an  in- 
formation for  a  libel,  and  of  Thomas  Paine, §  on  an 
information  for  a  similar  offence,  one  ingredient, 
though  mixed  up  with  many  others,  was  an  attack 
upon  the  justice  and  policy  of  the  revolution,  re- 
presenting it  as  the  origin  and  foundation  of  many 
political  evils  and  calamities. 

Such  are  the  principal  cases  of  prosecutions  for 
libel  where  the  matter  has  been  speculative ;  not 
directly  pointed  at  either  particular  men  or  mea- 
sures. 

Speculative  remarks  upon  the  constitution  cannot 
be  reduced  to  any  determined  scale,  by  which  their 
intrinsic  legality,  that  is  theirtendency,  can  be  ascer- 

*  11  Mod.  86.  t  Dig.  L.  L.  68-  27  G-  2. 

J   Hi!.  31  Geo-  2.    Dig.  L-  L.  69.  §  32  Geo.  3- 


4otf 

tained ;  they  admit  of  every  variety,  from  the  mere 
useful  and  honest  hint  and  recommendation  to  the 
legislature,  to  remedy  a  detected  abuse  or  defect, 
or  to  introduce  into  the  system  of  government 
some  new  rule  or  principle  which  may  benefit  the 
community,  to  the  daring  and  treasonable  assertion, 
that  the  family  on  the  throne  were  illegally  placed 
there. 

The  intrinsic  essence  of  a  libel  consists  in  its  ten- 
dency to  do  mischief;  the   question,  therefore,  as 
far  as    concerns  its   libellous  quality  is,  whether 
from  its  terms  it  is  calculated  to  alienate  the  mind 
of  the  person  who  reads  it  from  the  government  un- 
der which  he  lives,  and  to  inflame  him  to  acts  of 
violence  and  sedition ;    or  merely  to   instill  those 
wholesome  and  salutary  principles  which  may  be 
applied  to  public  advantage,  and   soberly  and  ra- 
tionally to  point  out  those   partial  defects   under 
some  of  which  the  most  perfect  system  of  govern- 
ment must  labour ;  not  for  the  purpose  of  exciting 
unthinking  men   to  seek  a  violent  remedy,  in  at- 
tempting which    the    political    constitution     may 
perish   altogether,   but  for  the  more  wise  and  be- 
nevolent design  of  pointing  out  to  those  who  have 
political  power,  how  it  may  best  be  exerted  for  the 
benefit  of  the  state.* 

A  publication  affecting  government,  may  assert 
either  the  personal  imperfections,  or  the  mismanage- 
ment of  those  who  are  intrusted  with  the  adminis- 

*  Lord  Loughborough,  in  the  debate  upon  the  Libel  Bill,  observed,  "  Every 
roan  may  publish,  at  his  discretion,  his  opinions  concerning  forms  and  systems 
of  government ;  if  they  be  wise  and  enlightening,  the  world  will  gain  by  them — 
if  they  be  weak  and  absurd,  they  will  be  laughed  at  and  forgotten — if  they  be 
hona  fir1e>  they  cannot  be  criminal,  however  erroneous  '* 


m 

tratiou  of  the  existing  constitution,  and  may  affect 
them  in  their  public  character,  or  as  individuals ; 
these  will  be  considered,  first  as  they  relate  per- 
sonally to  the  king  and  his  title. 

Words*  spoken,  have  frequently  been  deemed 
overt  acts  of  treason  for  which  the  speakers  have 
suffered.  Two  persons  were  executed  for  ungu  tried 
expressions  in  the  reign  of  Edward  IV.  the  one 
a  citizen,  who  said  he  would  make  his  son  heir 
to  the  Crown  (alluding  to  the  sign  of  the  house  in 
which  he  lived) — the  other,  a  gentleman,  whose 
favourite  buck  the  king  killed  in  hunting,  where- 
upon the  owner  wished  it  horns  and  all  in  the  belly 
of  him  who  had  counselled  the  king  to  kill  it,  and  the 
king  being  his  own  counsellor  on  the  occasion,  the 
words  were  construed  into  a  treasonable  expression 
against  the  king  himself. 

But  in  less  arbitrary  times,  the  legality  of  such 
proceedings  has  been  much  questioned ;  and  if  the 
position  that  words  may  constitute  an  overt  act  of 
treason  may  not  be  considered  as  totally  exploded, 
the  rigour  of  the  doctrine  has  at  all  events  been 
greatly  mitigated.  It  has  been  most  humanely  ob- 
served,! that  vords  ?nay  be  spoken  in  heat,  with- 
out any  intention  ;  or  be  mistaken,  perverted,  or 
misremembered  by  the  hearer;  their  meaning  de- 
pends always  on  their  connexion  with  other  words 
and  things  ;  they  may  signify  differently  even  ac- 
cording to  the  tone  of  voice  with  which  they  are 
delivered ;  and    sometimes  silence  is  more  expres- 

*  Hale's  PI.  Cro.  C.  115.     Sec  also  Hugh  Pine's  case,  Cro.  Car.  117.  wire  re 
other  capital  convictions  for  speaking  words  in  that  reign  are  cited. 

*  4  Black.  Comm.  79. 

58 


iSB 

sive  than  any  discourse.  Since,  therefore,  there 
can  he  nothing  more  equivocal  and  ambiguous  than 
words,  it  would  indeed  be  unreasonable  to  make 
them  amount  to  high  treason.  Of  this  opinion 
were  Stamford,  Ld.  Coke,  Ld.  Hale,*  Sir  Michael 
Foster,!  and  Sir  William  Blackstone,t  whose  opi- 
nion has  just  been  cited ;  and  in  the  reign  of 
Charles  the  First,  some  very  atrocious  words  hav- 
ing been  spoken  concerning  the  king  by  one  Pine, 
all  the  Judges  certified,  that  "  Though  the  words§ 
were  as  wicked  as  they  might  be,  yet  that  they 
were  no  treason ;  for  unless  it  be  by  some  particular 
statute,  no  words  will  be  treason." 

It  seems  clear||  however,  that  words  joined  to 
an  act  may  explain  it,  and  that  words  of  persua- 
sion to  kill  the  king,  or  manifesting  an  agreement, 
or  consultation,  or  direction,  to  that  purpose,  are 
sufficient  overt  acts  of  compassing  his  death. 

It  has  frequently  been  held,  that  words  committed 
to  print  or  writing,  and  published,  amount  to  an  overt 
act  of  treason,  to  prove  the  compassing  the  king's^ 
death ;  but  even  in  such  case  it  seems  that  a  publica- 
tion is  necessary,  though  in  arbitrary  times,  the  con- 
trary has  been  adjudged,  particularly  in  the  instances 
of  Peachum,**  a  clergyman,  and  of  Algernon  Syd- 
ney ;ft  the  former  of  whom  was  convicted  for  trea- 
sonable passages  in  a  sermon  never  preached,  and 

*  1  Hale,  11).  323.  |  Post.  Cr.  L.  200.  {  4  BL  Com.  80. 

§  Cro.  Car.  125.  See  Haw.  PI.  Cr-  c.  17.  s.  32,  33,  34,  35,  &c.  Fost.  Cr. 
L.  200.    1  Hale,  111.  323. 

||  Haw.  PI.  Cr.  c  17.  s.  37.     Fost.  202. 

IT  2  Hoi.  89,  90.  Fos.  346.  1 1  Modern,  3§8.  1  St.  Tr.  977.  3  St.  Tr-  228- 
5Bac-  Abr-  117- 

**  Cro-  Car.  125.  tt  Foster,  19* 


459 

the  latter  for  some  speculative  opinions  contained 
in  papers  discovered  in  his  private  closet ;  but  so 
unsatisfactory  did  the  grounds  of  these  convictions 
appear,  that  Peachum  was  not  executed,  and  the 
attainder  of  8)  dney  was  reversed. 

A  contempt  of  the  king's  person  may  be  by  im- 
puting to  him  the  want  of  capacity  or  integrity,*  by 
charging  him  with  a  breach  of  his  coronation  oath,| 
cursing  him,  wishing  him  ill,  spreading  false  rumours 
concerning  his  intentions,! — or,  in  short,  b}r  mail 
eiously  asserting  any  thing  concerning  him,  winch 
tends  to  lessen  him  in  the  esteem  of  his  subjects, 
weaken  his  government,  or  raise  jealousies  between 
him  and  his  people.  These  are  considered  as  high 
contempts  and  misprisions,  and  are  punishable  as 
misdemeanors  at  Common  Law. 

So  to  deny  the  King's  title  to  the  crown,  or  to 
raise  doubts  concerning  it,  in  unadvised  discourse, 
would  amount  to  a  contempt  at  Common  Law  ;  and 
to  do  it  deliberately  and  advisedly,  if  it  did  not  con- 
stitute treason,  would  at  least  subject  the  offender§ 
to  the  penalties  of  a  praemunire. 

In  the  reign  of  Elizabeth,  ||  all  the  Justices  and 
Barons  o(  the  Coif  assembled  at  Sergeant's-Inn, 
concerning  a  book,  devised  by  one  Brown,  contain- 
ing the  following  passage,  "  Every  preacher  run- 
neth to  the  Queen  now,  as  though  he  were  to  be 
directed  by  her  to  tarry  for  refon nations  to  be  had 
for  matters  of  the  church.  Tf  the  Magistrates  will 
agree,  all  is  well ; — if  they  will  not,  they  are  not  of 

■   Haw.  Fl.  Cr.  e.  23.    4  Bl.  Comm.  123. 

j   Noy,  105.     Haw.  PI.  Cr.  c  23.  s-  5.  \  Sec  3  E.  1.  c.  34. 

*  B!«ck.  Comm.  123      Haw.  PI?  Cr.  c.  17.  a.  35.  '!  Dip;- T..  1     • 


460 

the  church,  and  it  is  a  shame  to  tarry  tor  them,  or 
for  a  parliament,  or  proclamation  "  And  it  was  held 
by  all,  that  this  was  a  moving  of  insurrection  and 
sedition.* 

In  the  Digestf  of  the  Law  of  Libel  it  is  said,  that 
at  the  same  meeting,  Sir  Edmund  Anderson,  Ch.  J. 
of  the  Common  Pleas,  propounded  the  following 
case  to  his  brethren  : — A  person  had  caused  the 
arms  of  the  queen  to  be  painted  upon  a  post  in  a 
church  in  Suffolk,  with  this  inscription  painted  near 
them,  "  I  know  thy  works,  that  thou  art  neither  hot 
nor  cold ;  I  would  thou  wert  either  hot  or  cold  ; 
therefore,  because  thou  art  lukewarm,  it  will  come 
to  pass  that  I  will  spew  thee  out  of  my  mouth." 
But  the  Justices  came  to  no  resolution. 

John  Wilkes:}:  was  convicted  upon  an  information 
filed  by  the  Attorney-General, §  for  printing  and 
publishing  a  malicious  libel,  entitled  The  North 
Briton,  No.  45,  tending  to  vilify  and  traduce  the 
King  and  his  government — to  impeach  and  disparage 
his  veracity  and  honour — and  to  represent  and  make 
it  believed  that  his  Majesty's  most  gracious  speech, 
delivered  from  his  throne  to  the  parliament,  on  Tues- 
day the  19th  day  of  April,  1763,  contained  many 
falsities  and  gross  impositions  upon  the  public  ;  and 
that  his  Majesty  had  suffered  the  honour  and  dignity 
of  his  crown  to  be  sunk  and  prostituted,  and  the  in- 

*  The  question  proposed  was,  whether  the  publication  was  an  offence  within 
the  23d  Eliz.  c.  2.  which  was  a  temporary  stat.  ;  but  under  the  construction 
which  the  Judges  put  upon  this  book,  it  was  a  libel  at  Common  Law 

t  D.  L.  L.  66-     Sav.  49. 

X  Dig.  L.  L.  69.  Informations  were  also  filed  aeainst  Kearsley  and  Wil- 
liams, for  printing  and  publishing  the  same. 

§  Charles  Yorke,  Esq 


4bl 

terests  of  his  subjects  and  allies  to  be  treacherously 
betrayed  ;  and  also  to  render  the  king  and  his  go- 
vernment contemptible  and  odious,  and  to  excite  tu- 
mults, commotions,  and  insurrections,  &c.  &c. 

An  information*  was  filed  by  the  Attorney-Gene- 
ral against  the  printer  and  proprietor  of  the  Morn- 
ing Chronicle  newspaper,  for  publishing  the  follow- 
ing paragraph,  with  a  malicious  intent  to  alienate 
from  the  King  the  affections  of  his  subjects  :— 
"  What  a  crowd  of  blessings  rush  upon  one's  mind, 
that  might  be  bestowed  upon  the  country,  in  the 
event  of  a  total  change  of  system.  Of  all  monarchs, 
indeed,  since  the  revolution,  the  successor  of  George 
the  Third  will  have  the  finest  opportunity  of  be- 
coming nobly  popular." 

Lord  Ellenborough,  C.  J.  in  summing  up  to  the 
jury,  observed,  "  The  first  sentence  admits  of  an  in- 
nocent interpretation—'  What  a  crowd  of  blessings 
rush  upon  one's  mind,  that  might  be  bestowed  upon 
the  country,  in  the  event  of  a  total  change  of  system.' 
The  fair  meaning  of  the  expression,  '  change  of  oyo. 
tern,'  I  think,  is  a  change  of  political  system,  not  a 
change  in  the  frame  of  the  established  government, 
but  in  the  measures  of  policy  which  have  been  for 
some  time  pursued.     By  total  change  ot  system,  is 
certainly   not  meant  subversion  or  demolition  ;    tor 
the  descent  of  the  crown  to  the  successor  ot  his 
Majesty    is    mentioned    immediately    alter.      The 
writer  goes  on  to  speak  of  the  blessings  that  may 
be   enjoyed  upon  the  accession  of  the  Prince  of 
Wales;    and  thereiore  cannot   be   understood  to 

*  1  Camp.  Rep. 


4b2 

allude  to  a  change  inconsistent  with  the  full  vigour 
of  the  monarchical  part  of  the  constitution.  Now  I 
do  not  know  that  merely  saying,  there  would  be 
blessings  from  a  change  of  system,  without  reference 
to  the  period  at  which  they  niay  be  expected,  is  ex- 
pressing a  wish  or  a  sentiment  that  may  not  be  in- 
nocently expressed  in  reviewing  the  political  con- 
dition of  the  country.  The  information  treats  this 
as  a  libel  on  the  person  of  his  Majesty,  and  his 
personal  administration  of  the  government  of  the 
country.  But  there  may  be  error  in  the  present 
system,  without  any  vicious  motives,  and  with  the 
greatest  virtues,  on  the  part  of  the  reigning  sove- 
reign. He  may  be  misled  by  the  ministers  he  em- 
ploys, and  a  change  of  system  may  be  desirable 
from  their  faults.  He  may  himself,  notwithstanding 
the  utmost  solicitude  for  the  happiness  of  his  people, 
take  an  erroneous  view  of  some  great  question  of 
policy,  either  foreign  or  domestic.  I  know  of  but 
one  Being  to  whom  error  may  not  be  imputed.  If 
a  person  who  admits  the  wisdom  and  virtues  of  his 
Majesty,  laments  that  in  the  exercise  of  these,  he 
has  taken  an  unfortunate  and  erroneous  view  of  the 
interests  of  his  dominions,  I  am  nqt  prepared  to  say 
that  this  tends  to  degrade  his  Majesty,  or  to  alienate 
the  affection  of  his  subjects.  1  am  not  prepared  to 
say  that  this  is  libellous  :  but  it  must  be  with  perfect 
decency  and  respect,  and  without  any  imputation 
of  bad  motives.  (Jo  one  step  further,  and  say  or 
insinuate,  that  his  Majesty  acts  from  any  partial  or 
corrupt  view,  or  with  an  intention  to  favour  or  op- 
press any  individual  or  class  of  men,  and  it  would 
become  most  libellous.     However,  merely  to  rep- 


resent  that  an  erroneous  system  of  government  ob- 
tains under  his  Majesty's  reign,  I  am  not  prepared 
to  say,  exceeds  the  freedom  of  discussion  on  poli- 
tical subjects  which  the  law  permits      Then  comes 
the  next  sentence  :    '  Of  all  the  Monarchs,  indeed, 
since  the  revolution,  the  successor  of  George  the 
Third  will  have  the  finest  opportunity  of  becoming 
nobly  popular.'     This  is  more  equivocal,  and  it  will 
be  for  you,  Gentlemen  of  the  Jury,  to  determine 
what   is  the  fair    import  of  the  words  employed. 
Formerly  it   was  the   practice  to  say,  that  words 
were  to  be  taken  in  the  more  lenient  sense  ;    but 
that  doctrine  is  now  exploded  ;    they  are  not  to  be 
taken  in  the  more  lenient  or  more  severe  sense,  but 
in  the  sense  which  fairly  belongs  to  them,  and  which 
they  were  intended    to   convey.     Now,  do  these 
words  mean,  that  his  Majesty  is  actuated  by  im- 
proper motives  ?    or  that  his  successor  may  render 
himself  nobly  popular  by  taking  a  more  lively  in- 
terest in  the  welfare  of  his  subjects?    Such  senti- 
ments, as  it  would  be  most  mischievous,  so  it  would 
be  most  criminal  to  propagate.     But  if  the  passage 
only  meant  that  his  Majesty,  during  his  reign,  or  any 
length  of  time,  may  have  taken  an  imperfect  view  of 
the  interests  of  the  country,  either  respecting  our 
foreign  relations,  or  the  system  of  our  internal  po- 
licy ;  if  it  imputes  nothing  but  honest  error,  without 
moral  blame,  I  am  not  prepared  to  say  that  it  is  a 
libel.     The  extract  read  at  the  request  of  the  de- 
fendants, does  seem  to  me  too  remote,  in  point  of 
situation,  in  the  newspaper,  to  have  any  material 
bearing  on  the  paragraph  in  question.     If  it  had 
formed  a  part  of  the  same  discussion,  it  must  car- 


iU4 

tainly  have  tended  strongly  to  show  the  innocence 
of  the  whole.  It  speaks  of  that  which  every  body 
in  his  Majesty's  dominions  knows — his  Majesty's 
solicitude  for  the  happiness  of  his  people  ;  and  it 
expresses  a  respectful  regard  for  his  paternal  vir- 
tues. What  connexion  it  has  with  the  passage  set 
out  in  the  information,  it  is  for  you  to  determine. 
Taking  that  passage  substantively,  and  by  itself,  it 
is  a  matter,  I  think,  somewhat  doubtful,  whether  the 
writer  meant  to  calumniate  the  person  and  character 
of  our  august  Sovereign.  If  you  are  satisfied  that 
this  was  his  intention,  by  the  application  of  your 
understandings  honestly  and  fairly  to  the  words 
complained  of,  and  you  think  they  cannot  properly 
be  interpreted  by  the  extract  which  has  been  read 
from  the  same  paper,  you  will  find  the  defendants 
guilty.  But  if,  looking  at  the  obnoxious  paragraph 
by  itself,  you  are  persuaded  that  it  betrays  no  such 
intention  ;  or  if,  feeling  yourselves  warranted  to  im- 
port into  your  consideration  of  it  a  passage  con- 
nected with  the  subject,  though  considerably  distant 
in  place,  and  disjoined  by  other  matter,  you  infer 
from  that  connexion  that  this  was  written  without 
any  purpose  to  calumniate  the  personal  government 
of  his  Majesty,  and  render  it  odious  to  his  people, 
you  will  find  the  defendants  not  guilty.  The  ques- 
tion of  intention  is  for  your  c  onsideration.  You  will 
not  distort  the  words,  but  give  them  their  applica- 
tion and  meaning,  as  they  impress  your  minds. 
What  appears  to  me  most  material  is  the  substantive 
paragraph  itself;  and  if  you  consider  it  as  meant  to 
represent  that  the  reign  of  his  Majesty  is  the  only 
thing  interposed  between  the  subjects  of  this  countn 


46i> 

and  the  possession  of  great  blessings,  which  are 
likely  to  be  enjoyed  in  the  reign  of  his  successor, 
and  thus  to  render  his  Majesty's  administration  of 
his  government  odious,  it  is  a  calumnious  paragraph, 
and  to  be  dealt  with  as  a  libel.  If,  on  the  contrary, 
you  do  not  see  that  it  means,  distinctly,  according 
to  your  reasoning,  to  impute  any  purposed  mal-ad- 
ministration  to  his  majesty  or  those  acting  under 
him,  but  may  be  fairly  construed  an  expression  of 
regret  that  an  erroneous  view  has  been  taken  of 
public  affairs,  I  am  not  prepared  to  say  that  it  is  a 
libel.  There  have  been  errors  in  the  administration 
of  the  most  enlightened  men.  1  will  take  the  in- 
stance of  a  man,  who  for  a  time  administered  the 
concerns  of  this  country  with  great  ability,  although 
he  gained  his  elevation  with  great  crime,  I  mean 
Oliver  Cromwell.  We  are  at  this  moment  suffering 
from  a  most  erroneous  principle  of  his  government, 
in  turning  the  balance  of  power  against  the  Spanish 
monarchy,  in  favour  of  the  house  of  Bourbon.  He 
thereby  laid  the  foundation  of  that  ascendency, 
which,  unfortunately  for  all  mankind,  France  has 
since  obtained  in #the  affairs  of  Europe.  The  great- 
est monarchs  who  have  ever  reigned — monarchs  who 
have  felt  the  most  anxious  solicitude  for  the  welfare 
of  the  country,  and  who  have  in  some  respects  been 
the  authors  of  the  highest  blessings  to  their  sub- 
jects, have  erred  ;  but  could  a  simple  expression  of 
regret  for  any  error  they  had  committed,  or  an  ear- 
nest wish  to  see  that  error  corrected,  be  considered 
as  disparaging  them,  or  tending  to  endanger  their 
government?  Gentlemen,  with  these  directions,  the 
whole  subject  is  for  your  consideration.     Apply 

59 


466 

your  minds  candidly  and  uprightly  to  the  meaning 
of  the  passage  in  question  :  distort  no  part  of  it  for 
one  purpose  or  another,  and  let  your  verdict  be  the 
result  of  your  fair  and  deliberate  judgment."  (1) 

The  King's  character  and  title  are  further  guarded 
by  several  legislative  provisions.  The  13th  of  Ed. 
1.  c.  34.  enacts,  that  none  be  so  hardy  to  tell  or  pub- 
lish any  false  news  or  tales,  whereby  discord,  or  oc- 
casion of  discord,  may  grow  between  the  King  and 
his  people,  or  the  great  men  of  the  realm.* 

By  6  Ann.  c.  7.  s.  7.  it  is  made  high  treason  to 
affirm,  by  writing  or  printing,  that  the  King  is  not 
the  lawful  and  rightful  King  of  the  realm,  or  that 
any  other  person  has  title  to  the  same,  otherwise 
than  according  to  the  Bill  of  Rights,!  the  Act  of 
Settlement,!  and  the  Act  of  Union,  or  that  Parlia- 
ment has  not  authority  to  limit  the  descent  of  the 
crown. 

To  assert  that  the  Common  Laws  of  the  realm, 
not  altered  by  Parliament,  ought  not  to  direct  the 
right  to  the  crown  of  England,  is  a  misdemeanor, 
and  punishable  with  forfeiture  o£  goods  and  chat- 
tels^ • 

In  the  reign  of  Ed,  6.  it  was,  by  an  act  which  ex- 
pired with  that  Kmg,  made  high  treason  to  assert 
in  print  or  writing,  that  he  was  not  the  supreme 
head  of  the  church.!! 


*  Sec  Cro.  J.  3S.  and  the  case  of  A.  Scott,  for  publishing  false  news.    O.  B. 
June  Sess.  1788.     Haw.  P.  C.  c.  23.  s.  4. 

f   1  W.  &  M.  st.  2.  c.  2.  s.  9.       J  12  &  13  W.  3.  c.  2.       §  13  Eliz.  c-  1. 
jf  Sec  also  St.  23  Eliz.  c.  2.  which  expired  with  that  sovereign. 


(1)  See  and  consider  the  Kins  v.  Harvey  et  aU  3  Dowl.  &  Kyi.  464- 


4t>7 

By  the  d6th  Geo.  3.  c.  7.  it  is  enacted,  that  if  any 
person  shall  imagine  or  intend  death,  destruction,  or 
any  bodily  harm  to  the  person  of  the  King,  or  to 
depose  him,  or  to  levy  war,  in  order  by  force  to 
compel  him  to  change  his  measures  or  counsels,  &c. 
and  shall  express  and  declare  such  intentions  bj- 
printing,  ivritinv,  or  any  overt  act,  he  shall  suffer 
death  as  a  traitor. 

And  if  any  one  by  writing,  printing,  preaching, 
or  other  speaking,  shall  use  any  words  or  sentences 
to  incite  the  people  to  hatred  and  contempt  of  the 
King,  or  of  the  government  and  constitution  of  this 
realm,  he  shall  receive  the  punishment  of  a  high  mis- 
demeanor ;  that  is,  fine,  imprisonment,  and  pillory, 
and  for  a  second  offence,  he  is  subject  to  a  similar 
punishment,  or  transportation  for  seven  years,  at 
the  discretion  of  the  Court.  The  time  of  prosecu- 
tion under  the  act  is  limited  to  six  months,  and  the 
statute  does  not  affect  any  prosecution  at  Common 
Law,  unless  a  prosecution  be  previously  commenced 
under  the  statute. 

With  regard  to  contempts  committed  against  the 
person. or  title  of  the  King,  more  perhaps  has  been 
said  than  was  called  for  by  any  thing  requiring  ex- 
planation. Where  the  subject  is  convinced,  that  a 
particular  measure  has  been  adopted  by  any  branch 
of  government  calculated  to  produce  mischief,  it  is 
a  duty  which  he  owes  his  country  to  point  it  out ; 
but  where  the  supposed  error  is  connected  with  the 
personal  character  of  the  sovereign,  he  is  bound  by 
the  plainest  rules  of  common  decency,  to  make  his 
representation  in  language  the  n^st  moderate  and 
respectful.     Any  personal  reaction  is  sufficient  to 


4(58 

render  the  actor  criminal ;  for  it  would  be  strange 
indeed,  if  that  might  be  said  or  written  of  the  mo- 
narch with  impunity,  which  it  would  be  criminal  to 
pronounce  of  one  of  his  nobles,  or  to  write  concern- 
ing the  meanest  of  his  subjects. 

Since,  in  contemplation  of  law,  the  affairs  of  the 
state  are  administered  by  the  King,  reflections  upon 
the  administration  of  government,  or  upon  the  ca- 
pacities of  those  to  whom  it  is  immediately  intrust- 
ed, are,  by  virtue  of  a  similar  construction,  a  con- 
tempt of  the  King  himself. 

It  has  been  said  by  a  high  authority,*  that  "  every 
freeman  has  an  undoubted  right  to  lay  what  he 
pleases  before  the  public — to  forbid  this  is  to  de- 
stroy the  freedom  of  the  press  ;  but  if  he  publishes 
what  is  improper,  mischievous,  or  illegal,  he  must 
take  the  consequence  of  his  own  temerity  ."(I) 

This  privilege  necessarily  includes  candid  com- 
ments upon  public  affairs,  and  the  mode  in  which 
they  are  conducted ;  since  such  cannot  be  consider- 
ed in  the  abstract  as  falling  within  the  meaning  of  the 
terms,  improper,  mischievous,  and  illegal. 

On  the  trial  of  James  Perry  and  another,-!  on  an 
information  for  a  libel,  the  Attorney-general,  in  his 
opening  to  the  Jury,  observed,  "  From  the  Bench 
you  will  hear  laid  down,  from  the  most  respectable 
authority,  the  law  which  you  are  to  apply  to  those 
facts.     The  right  of  every  man  to  represent  what 

*  4B1-  Comm.  151. 

t  Before  Ld.  Kenyon,  1793.     See  Itidgway's  Collection,  &c.   2  vol.  37 1. 


(I)  Retpublica  v.  Dennie,  4  Yeat.es,  2G7.     See  post,  note,  [1.] 


409 

lie  may  conceive  to  be  an  abuse  or  grievance  in  the 
government  of  the  country,  if  his  intention  in  so 
doing  be  honest,  and  the  statement  made  upon  fair 
and  open  grounds,  can  never  for  a  moment  be  ques- 
tioned. I  shall  never  think  it  my  duty  to  prosecute 
any  person  for  writing,  printing,  and  publishing,  fair 
and  candid  opinions  on  the  system  of  the  govern- 
ment and  constitution  of  this  country,  nor  for  point- 
ing out  what  he  may  honestly  conceive  to  be  griev- 
ances, nor  for  proposing  legal  means  of  redress." 
When  measures  are  fairly  canvassed,  and  their  de- 
fects, real  or  imaginary,  pointed  out  with  coolness 
and  temper,  it  does  not  seem  to  have  been  contend- 
ed, in  modern  times,  that  the  line  of  duty  has  been 
transgressed,  though  the  discussion  may  tend  to 
prove  the  authors  of  those  measures  to  be  ill  quali- 
fied for  their  situations.  Party  heat  and  zeal  will 
overleap  those  bounds,  or  any,  indeed,  which  decen- 
cy mighl  prescribe  ;  and  the  thirst  after  honours  and 
wealth,  and,  frequently,  motives  still  more  repre- 
hensible, produce  personal  attacks  upon  character, 
— misrepresentation  or  exaggerated  statements  of 
matters  of  fact, — or  downright  lies  fabricated  to  an- 
swer particular  ends,  and  illustrated  with  inflamma- 
tory comments. 

To  prevent  all  excesses  of  this  nature,  without 
destroying  at  the  same  time  the  liberty  of  the  press, 
would  be  as  impracticable  as  to  root  out  from  human 
nature  the  passions  which  gave  them  birth ;  but 
though  it  may  not  be  politic  to  interfere  in  every  in- 
stance where  the  bounds  of  rational  discussion  may 
have  been  overstepped,  it  seems  clear  that  any  such 
excess  is  illegal. 


470 

The  test  of  intrinsic  illegality  must,  in  this  as  in 
other  cases,  be  decided  by  the  answer  to  the  ques- 
tion, "  Has  the  communication  a  plain  tendency  to 
produce  public  mischief,  by  perverting  the  mind  of 
the  subject,  and  creating  a  general  dissatisfaction 
toward  government'?"  This  tendency  must  be  as- 
certained by  a  number  of  circumstances  capable  of 
infinite  variety  ;  it  is  evidenced  by  the  wilful  misre- 
presentation or  exaggerated  account  of  facts  which 
do  exist,  or  the  assertion  of  those  which  do  not, 
mingled  with  inflammatory  comments,  addressed 
to  the  passions  of  men  and  not  to  their  reason,  tend- 
ing to  seduce  the  minds  of  the  multitude,  to  irritate 
and  inflame  them. 

It  may  be  said,  where  is  the  line  to  be  drawn? 
Discontent  may  be  produced  by  a  fair  statement  of 
facts,  inasmuch  as  it  is  very  possible  for  an  imbecile 
or  corrupt  man  to  be  employed  in  the  administra- 
tion of  public  affairs.  To  this  it  may  be  replied, 
that  to  render  the  author  criminal,  his  publication 
must  have  proceeded  from  a  malicious  mind,  bent 
not  upon  making  a  fair  communication  for  the  pur- 
pose of  exposing  bad  measures,  but  for  the  sake  of 
exciting  tumult  and  disaffection.  The  Judge,  who 
presides  at  the  trial,  is  bound  by  the  law  of  the 
land,  to  deliver  his  opinion  to  the  Jury  upon  the 
quality  and  tendency  of  the  publication ;  and  the 
defendant  cannot  be  convicted,  unless  that  Jury 
be  convinced  of  the  unfairness,  that  is,  of  the  malice 
of  the  representation. 

It  would  exceed  the  proposed  limits  of  this  trea- 
tise, to  cite  cases  in  detail  under  this  division; 
every   case,   indeed,  falling  within  it,  is  too  inti- 


471 

mately  involved  in  its  particular  circumstances  to 
admit  of  any  abstract  less  general  thanthe  elements 
which  have  been  laid  down  as  essential  to  the  libel- 
lous quality,  the  plain  intrinsic  tendency*  of  the 
communication  to  produce  public  disorder,  and 
the  malicious  intention  of  its  author. 

A  person   delivered!  a  ticket  up  to  the  minister 
after  a  sermon,  wherein  he  desired  him  to  take  no- 
tice, that  offences  passed  now  without  control  from 
the  civil   magistrate,  and  to    quicken  the  civil  ma- 
gistrate to   do  his  duty,  &c.     This  was  held  to  be 
a  libel,   though  no   magistrates  in  particular  were 
mentioned,  and  though  it  was  not  averred  that  the 
magistrates  suffered  these  vices  knowingly.     And 
the  ground  of  the  conviction  has  been  stated  to  be, 
thai  general  misrepresentations  of  the  government 
or  state  of  the  nation,  or  mutinous  hints,  tend  to 
excite  discontent  and  sedition  in  the  people,  and 
that  the  generality  of  the  reflection  made  it  the  more 
dangerous,  since    it  had  a  bad  effect  on  the  whole 
frame  of  government 4 

Lawrence  was  convicted§  upon  an  information 
charging  him  with  having  sent  a  letter  to  Sir  John 
Pio-ot,  desiring  him  to  moderate  his  zeal,  for  that 
the  King  (meaning  King  James  II.)  would  soon  be 
restored ;  and  that  for  further  satisfaction  herein, 
he  would  soon  hear  that  many  lords  would  repair 

*  See  R.  v.  Beare,  12  Mod.  221.  Ld.  Ray.  418.  Dig.  L.  L.  19-  121.  R. 
v  Bedford,  2  Str.  789.  Rex.  v.  Owen,  K-  B.  MSS.  Dig.  L.  L.  67.  R.  v. 
Lawrence,  12  Mod.   311.     R-  v.  Bl.ss,  clerk,  K.  B.  MSS.  5  G.  1-     Dig.  L, 

L. 122. 

t  Sid.  219-    Keb.  773.    Bac  Ab.  tit.  Libel,  4S0.     16  Car.  2. 
Bi9  L  L.  5.  §  12  Mod-  311.     Dis-  L.  L.  121 


472 

to  him  to  France,  what  to  do  he  might  guess.  The 
defendant  was  fined  forty  marks. 

John  Tutchin  was  convicted*  upon  an  information 
for  publishing  the  several  libels  containing  the  fol- 
lowing paragraphs : 

"  If  we  may  judge  by  our  national  miscariages, 
perhaps  no  nation  in  Europe  has  felt  the  influence 
of  French  gold  more  than  England  ;  and  worthy  it 
is  our  greatest  lamentation,  that  our  dear  country 
should  be  thus  weakened  by  men  of  mercenary 
principles,  when  countries,  inferior  to  us  in  strength 
and  riches,  are  secured  from  attempts  of  this  na- 
ture only  by  the  fidelity  of  their  people.  What  is 
the  reason  that  French  gold  has  not  affected  Hol- 
land as  well  as  England,  but  that  their  ministry  is 
such  as  is  entirely  in  the  interest  of  their  country, 
and  altogether  incorruptible.  They  prefer  men 
that  are  knowing  in  their  posts,  and  are  active  in 
business,  when  in  England  we  find  out  offices  for 
men,  and  not  men  for  offices.  By  this,  and  by  pre- 
ferring men  by  interest  and  favour,  have  the  excise, 
the  customs,  and  other  branches  of  the  revenue, 
intolerably  sunk,  and  by  this  means  has  the  navy  of 
England,  our  chief  support,  been  hitherto  perfectly 
bewitched.  And  can  Lewis  spend  his  money  bet- 
ter, than  in  getting  men  into  office  in  England,  who 
are  either  false  or  ignorant  in  the  business,  or  who 
are  his  friends  ?" 

Ld.  Holt  C.  J.  in  summing  up  to  the  Jury,  ob- 
served, "  To  say  that  corrupt  officers  are  appointed 
to  administer  affairs  is  certainly  a  reflection  on  the 

*  5St.fr.  532.    3  Ann.  1704. 


1-7.5 

i-o\  enmient.  If  persons  should  "not  be  called  to 
account  for  possessing  the  people  with  an  ill  opi- 
nion of  the  government,  no  government  can  subsist; 
nothing  can  be  worse  to  any  government,  than  to 
endeavour  to  procure  animosities  as  to  the  manage- 
ment of  it;  this  has  always  been  looked  upon  as  a 
crime,  and  no  government  can  be  safe  unless  it  be 
punished.  Now  you  are  to  consider,  whether  these 
words  I  have  read  to  you,  do  not  tend  to  beget  an 
ill  opinion  of  the  administration  of  the  govern- 
ment." 

John  Clarke*  was  found  guilty  upon  an'  informa- 
tion, charging  him  with  having  printed  and  pub- 
lished a  malicious  libel,  intituled  "  Mist's  Weekly 
Journal,"  containing  false,  malicious,  and  seditious 
reflections  on  his  late  and  present  majesty,  by  draw- 
ing odious  parallels,  and  thereby  maliciously  and 
falsely  insinuating  our  government  to  be  tyrannical, 
and  the  ministry  corrupt  and  abominable. 

Richard  Franklinf  was  found  guilty  upon  an  in- 
formation, charging  him  with  having  printed  and 
published  a  malicious  libel,  intituled  "No.  235. 
The  Country  Journal,  or  the  Craftsman,"  contain- 
ing an  extract  from  a  private  letter  from  the  Hague, 
with  intent  {inter  alia)  to  scandalize  and  vilify  the 
administration  of  his  Majesty's  government  of  this 
kingdom,  and  his  principal  officers  and  ministers  of 
state,  and  to  represent  his  said  officers  and  minis- 
ters of  state  as  persons  of  no  integrity  and  ability, 
and  as  enemies  to  the  public  good  of  this  kingdom. 

William  Cobbett^    was  tried  upon  an  informa- 

•  9  St.Tr.  273.    Feb.  25,  1729-  t  9  St.  Tr.  255.         ?  F».  T.  18Q*. 

m 


474 

tion  for  publishing  a  libel  in  the  Weekly  Register, 
entitled  "Juverna."  Ld.  Ellenborough,  C.J.  in 
summing  up  to  the  jmy,  observed,  "It  is  no  new 
doctrine,  that  if  a  publication  be  calculated  to  alien- 
ate the  affections  of  the  people  by  bringing  the 
government  into  disesteem,  whether  the  expedient 
be  by  ridicule  or  obloquy,  the  person,  so  conduct- 
ing himself,  is  exposed  to  the  inflictions  of  the  law. 
It  is  a  crime  ;  it  has  ever  been  considered  as  a  crime, 
whether  wrapt  in  one-  form  or  another.  The  case 
of  the  King  v.  Tutchin  has  removed  all  ambiguity 
from  the  question ;  and  although  at  the  period 
when  that  case  was  decided  great  political  conten- 
tions existed,  the  matter  was  not  again  brought  be- 
fore the  Judges  of  the  Court  upon  any  application 
for  a  new  trial." 

In  a  subsequent  part  of  the  same  charge,  his 
Lordship  added,  "  It  has  been  observed,  that  it  is 
the  right  of  the  British  subject  to  exhibit  the  folly 
or  imbecility  of  the  members  of  the  government. 
But,  gentlemen,  we  must  confine  ourselves  within 
limits.  If  in  so  doing  individual  feelings  are  vio- 
lated, there  the  line  of  interdiction  begins,  and 
the  offence  becomes  the  subject  of  penal  visita- 
tion."* 

In  all  these  cases  it  may  be  laid  down  as  a  ge- 
neral rule,  that  though    the   discussion  of  politi- 

*  Note.  For  other  illustrations  of  this  subject,  see  the  cases  of  Ld.  Balme- 
rino,  10  Car.  St.  Tr.  Seven  Bishops,  4  Jac.  2  St.  Tr.  Brewster,.  15  Car.  9, 
St.  Tr.  Brookes,  15  Car.  2.  St.  Tr.  Henry  Carr,  31  Car.  2.  St.  Tr.  Fitz- 
gerald, 1  Ann.  Salk.  401.  Johnson,  2  Ja.  2.  Show.  Rep.  4S8.  Leighton,  6 
Car.  1.  St.  Tr.  Owen,  25  Geo-  2-  Dig.  L.  L.  68.  Pain,  Salk.  281.  5  Mod.  163. 
Prynne,  Sid.  219.  Keb.  773.  16  Car.  2.  St.  Tr.  Sacheverell,  Dr.  St.  Tr.  and 
the  more  modern  cases  of  Finnerty,  Lovel,  Drakard,  Cobbett,  and  Gale  Jones. 


475 

cal  measures  is  innocent  in  the  abstract,  their  dis- 
cussion must  not  be  made  a  cloak  for  an  attack 
upon  private  character,  which  is  of  itself  a  substan- 
tive injuiy,  independent  of  its  political  connexion. 
It  maybe  asked,  how  can  members  of  the  govern- 
ment be  blamed  without  an  injury  to  their  feelings, 
bad  measures  can  be  derived  but  from  one  or  both 
of  two  sources,  knavery  and  folly.  The  plain  and 
obvious  answer  seems  to  be,  that  as  far  as  the  pre- 
judice to  private  character  or  feelings  results  simply 
from  the  exposure  of  an  absurd  and  inefficient  mea- 
sure, the  author  must  be  content  to  bear  with  it ;  he 
has  made  himself  in  some  sort  publici  juris ,  by  un- 
dertaking to  act  in  a  public  capacity ;  and,  there- 
fore, has  no  right  to  complain  on  account  of  any 
personal  inconvenience,  which  may  accrue  from  a 
fair  comment  upon  his  execution  of  that  duty.  He 
seems  to  stand  in  a  situation  similar  to  that  of  the 
author  of  a  book,  who,  as  far  as  he  identifies  him- 
self with  his  work,  is  the  fair  object  of  criticism, 
however  disagreeable  it  may  prove  to  his  private 
feelings. 

The  line  of  distinction  seems  plain  between  a 
fair  discussion  of  the  merits  of  any  measure  adopted 
by  government,  and  an  attack  upon  the  private 
characters  of  those  who  proposed  it ;  if  the  measure 
be  bad,  policy  requires  that  the  error  should  be 
made  public,  but  the  same  policy  can  never  justify 
either  general  or  particular  imputations  on  the  in- 
tegrity of  individuals  ;  if  there  be  ground  for  such  a 
charge  the  guilty  party  is  amenable  to  the  laws,  and 
it  is  the  duty  of  the  accuser  to  apply  to  the  proper 
tribunal,  and  not  to  allow  the  crimination  to  rest  on 


476 

his  own  bare  assertion :  if  the  fact  be  doubtful,  the 
necessity  for  judicial  examination,  in  opposition  to 
bare  assertion,  is  still  stronger:  if  the  charge  be  a 
mere  fiction,  the  calumniator  attempts  to  impose 
upon  and  injure  his  country,  by  destroying  the 
characters  of  those  who  are  watching  over  its  inter- 
ests,— an  act  of  guilt,  the  malignity  of  which  can 
scarcely  be  exceeded. 

Next,  as  to  publications  affecting  the  adminis- 
tration of  justice. 

Contempts  against  the  King's  Judges,  and  scan- 
dalous reflections  on  their  proceedings,  fall  within 
the  same  consideration  with  the  former  class  of  of- 
fences, since  nothing  tends  more  to  disturb  public 
order  than  to  infuse  suspicions  concerning  the  ad- 
ministration of  justice. 

Offences  of  this  nature  may  consist  either  in  the 
more  gross  violation  of  decency,  by  making  use  of 
contumelious  and  insolent  language  in  the  face  of 
the  court,  or  in  the  publishing  of  reflections  on  the 
purity  of  its  proceedings,  tending  to  obstruct  the 
course  of  justice. 

Generally,  any  contemptuous  or  contumelious 
words,  when  spoken  to  the  Judges  of  any  courts,  in 
the  execution  of  their  office,  are  indictable.*  As 
if  one  give  the  lief  to  a  Judge  of  a  Court  Leet,  in 
the  face  of  the  court ;  or,  being  admonished  by  him 
to  pull  off  his  hat,  say,t  "  I  do  not  value  what  you 
can  do;"  or  tell  him,  in  the  face  of  the  court,  that 

*  1  Sid-  144.     Str.  420.     2  Rol.  Ab.  73. 

t  Ow.  113.    Mo.  470.    Cro.  Eliz.  581.  -    I  Ray.  78-    1  Keb.  451.  465, 


477 

he  is  forsworn,*  or  call  him  a  fool,f  or  say,  "  If  I 
cannot  have  justice  here,  I  will  have  it  elsewhere."? 

When  reflecting  words  are  spoken  of  the  Judges 
of  the  superior  Courts,  at  Westminster,  the  speaker 
is  indictable  both  at  Common  Law  and  under  the 
statutes  of  Scandalum  Magnatum,  whether  the  words 
relate  to  their  office  or  not. 

But  it  seems  that  no  indictment  lies  for  con- 
temptuous words  spoken  either  of  or  to  inferior 
Magistrates,  unless  they  be  in  the  actual  execution 
of  their  duty,  or  at  least  unless  the  words  affect 
them  directly  in  their  office,  though  it  may  be  good 
cause  for  binding  the  offender  to  his  good  beha- 
viour^ 

Next,  where  the  publication  reflects  upon  the  ad- 
ministration of  justice. 

Hurry y  had  summoned  Watson,  who  was  a  mem- 
ber of  a  corporate  body,  into  a  Court  of  Requests, 
to  recover  the  sum  of  11*.  Hurry  was  afterward 
indicted  by  Watson  for  perjury,  alleged  to  have  been 
committed  in  the  Court  of  Requests,  and  *'"f  ^quit- 
ted on  the  merits.  Hurry  then  brought  an  action 
against  Watson,  for  a  malicious  prosecution,  in  which 
he  recovered  3000/.  damages,  and  the  court  re- 
fused to  set  aside  the  verdict.  A  majority  of  the 
corporation  afterward  entered  a  resolution  in  their 
books,  asserting,  "  that  Mr.  Watson  had  been  ac- 
tuated by  motives  of  public  justice"  and  voted  him 
the  sum  of  2300/. 

An  information  was  applied  for,  one  ground  for 

*  2  Rol.  Ab.  78-         t  Cro.  Eliz.  78.  \  1  Sid.  144.     Keb.  508.. 

§  6  Mod.  125.     Haw.  PI.  C.  c.  21.  s.  13.  [post,  note  33-1 
The  King  v.  Watson  and  others,  2  T.  R.  193 


!  47S 

which  was,  that  the  terms  of  the  order  constituted 
a  high  contempt  of  the  administration  of  justice. 
On  granting  the  information,  Ashhurst,  J.  observed, 
"  The  assertion  that  he  was  actuated  by  motives  of 
public  justice,  carries  with  it  an  imputation  on  the 
public  justice  of  the  country  ;  for  if  these  were  his 
only  motives,  then  the  verdict  must  be  wrong." 

And  Builer,  Justice,  "  Nothing  can  be  of  greater 
importance  to  the  welfare  of  the  public  than  to  put 
a  stop  to  the  animadversions  and  censures  which 
are  so  frequently  made  upon  courts  of  justice  in 
this  country  ;  they  can  be  of  no  service,  and  may 
be  of  the  most  mischievous  consequences.  Cases 
may  happen  in  which  the  Judge  and  Jury  may  be 
mistaken  :  when  they  are,  the  law  has  afforded  a 
remedy,  and  the  party  injured  is  entitled  to  pursue 
every  method  which  the  law  allows  to  correct  the 
mistake  ;  but  when  a  person  has  recourse  to  a  wri- 
ting like  the  present,  by  publications  in  print,  or  by 
any  other  means,  to  calumniate  the  proceedings  of 
a  efccourtjf  justice,  the  obvious  tendency  of  it  is  to 
weaken  fhe"  administration  of  justice,  and  in  conse- 
quence to  sap  the  very  foundation  of  the  constitution 
itself." 

An  information  had  been  hied*  by  the  Attorney- 
general  against  White  and  others,  for  an  abusive 
comment  on  the  conduct  of  a  Judge  and  Jury,  by 
whom  a  person  had  lately  been  tried  for  murder, 
and  acquitted.  Upon  the  trial  of  the  defendants  for 
the  libel,  Mr.  Justice  Grose  informed  the  jury,  that 
in  case  they  were  of  opinion  that  the  publication 

*  Sittings  after  Easter  Term,  43  Geo.  3d. 


479 

had  been  made,  not  with  a  view  to  elucidate  the 
truth,  but  to  injure  the  characters  of  individuals, 
and  to  bring  into  hatred  and  contempt  the  adminis- 
tration of  justice  in  the  country,  they  ought  to  find 
the  defendants*  guilty. 

The  same  policy  which  prohibits  seditious  com- 
ments on  the  King's  conduct  and  government,  ex- 
tends, on  the   same  grounds,  to  similar  reflections 
on  the  proceedings  of  the  two  Houses  of  Parliament. 
These  bodies,  so  essential  a  part  of  the  constitu- 
tion, are  at  all  events  entitled  to  reverence  and  re- 
spect on  account  of  the  great  and  important  public 
services  which  they  are  bound  to  discharge.     They 
have  exercised,  from  very  early  times,  those  means  of 
repressing  immediate  insults  and  contempts  of  their 
authority,  which  are  essential  at  least  to  their  dig- 
nity, if  not  to  their  very  existence  ;  nevertheless, 
they  have  been  sparing  in  the  exercise  of  their 
extensive  and  apparently  undefined  powers,  and 
have,  in  many  instances,  waived  their  privileges, 
and  delivered  over  offenders  to  be  dealt  with  by 
the   Common  Law.     It  seems   to  have  been  the 
policy  of  the  courts  to  encourage  such  a  proceed- 
ing ;  and  it  is  no  less  the  duty  of  juries  to  pay  a 
ready  attention  when  proof  of  such  insults  is  sub- 
mitted to  them. 

It  will  be  sufficient  to  glance  slightly  upon  the 
consequence  likely  to  arise  from  a  contrary  conduct; 
the  compelling  those  important  assemblies  to  redress 
their  own  affronts— a  measure  necessarily  irksome 
to  them,  since  they  are  obliged  to  unite  characters 

*  The  Jury  found  them  guilty,  and  they  were  sentenced  to  three  years  im- 
prisonmenb 


481) 

which  the  general  policy  of  the  law  has,  except  in 
these  and  other  cases  of  necessity,  kept  asunder, 
and  which,  if  very  frequently  resorted  to,  might 
eventually  introduce  disagreeable  discussions  as  to 
the  extent  of  those  most  important  and  essential 
privileges. 

In  the  case*  of  the  King  v.  Rayner,  the  defend- 
ant having  been  convicted  of  printing  a  scandalous 
libel  upon  the  Houses  of  Lords  and  Commons, 
called  "  Robin's  Reign,  or  Seven's  the  Main,"  the 
court  set  a  fine  of  50/.  upon  him — committed  him 
for  two  years,  and  until  he  should  pay  the  fine — and 
likewise  till  he  should  find  security  for  his  good  be- 
haviour for  seven  years. 

William  Owenf  was  tried  upon  an  information 
exhibited  against  him  for  publishing  a  malicious  libel, 
entitled  "  The  Case  of  the  Honourable  Alexander 
Murray,  Esq.  in  an  Appeal  to  the  People  of  Great 
Britain,"  &c.  tending  to  scandalize  and  vilify  the 
whole  body  of  the  Commons  in  Parliament  assem- 
bled ;  to  represent  the  proceedings  in  Parliament 
as  cruel,  arbitrary,  and  oppressive ;  to  make  it  be- 
lieved that  the  Commons  in  Parliament  assembled 
had  acted,  in  their  legislative  capacity,  in  open  vio- 
lation of  the  Constitution  ;  and  also  to  represent 
the  said  House  of  Commons  as  a  Court  of  Inquisi- 
tion, &c.  &c.  &c. 

Upon  the  publication  of  this  alleged  libel  by  the 
defendant,,  the  Commons  addressed  the  king,  de- 

*  2  Barnard.  K.  B.  293.    Dig.  L.  L.  125- 
t  Michs.  25  G.  2.  K.  B.  MSS.    Dig.  L.  L.  67- 


451 

'siring   his  majesty  to  give  orders  to  pros-ecute  the 
publisher,  which  was  done.* 

After  the  impeachment  of  Mr.  Hastings,  a  re- 
view of  the  articles  of  impeachment  waspublished, 
by  John  Stockdale.  Upon  the  suggestion  of  Mr. 
Fox,  one  of  the  managers  of  the  impeachment,  the 
House  unanimously  voted  an  address  to  the  King, 
praying  his  majesty  to  direct  his  Attorney-gene- 
ralf  to  file  an  information  against  Mr.  Stockdale,  as 
the  publisher  of  a  libel  upon  the  Commons.  The 
Attorney-general,  on  opening  the  case  to  the  Jury, 
after  stating  the  address  of  the  Commons,  proceeded 
to  observe,  "  I  state  it  as  a  measure  which  they 
have  taken,  thinking  it,  in  their  wisdom,  as  every 
one  must  think  it,  to  be  the  fittest  to  bring  hefore 
a  jury  of  their  country  an  offender  against  them- 
selves, avoiding  thereby,  what  sometimes  indeed 
is  unavoidable,  but  which  they  wish  to  avoid  when- 
ever it  can  be  done  with  propriety,  the  acting  both 
as  judges  and  accusers,  which  they  must  necessa- 
rily have  done,  had  they  resorted  to  their  own  pow- 
ers, which  are  great  and  extensive,  for  the  purpose 
of  vindicating  themselves  against  insult  and  con- 
tempt, but  which,  in  the  present  instance,  they  have 
wisely  forborne  to  exercise,  thinking*  it  better  to 
leave  the  offender  to  be  dealt  with  by  a  fair  and  im- 
partial Jury." 

*  He  was  tried  before  Lord  C  J.  Lee,  and  acquitted. 

T  Sir  Archibald  Macdonald,  now  Lord  Chief  Baron  of  the  Court  of  Exchequer. 

%  Ridgway's  Speeches  of  the  Hon-  T.  Erskine- 

.Vote.— Scandalous  reflections  upon  the  grandee*  of  the  realm  fall  within  the 
division  of  the  subject  which  has  been  considered  in  the  last  chapter  ;  but  since 
the  proceeding  by  writ  of  Scandalum  Magnatum  is  of  a  civil  as  well  as  of  a 
criminal  nature,  the  extent  of  the  injury  has  been  treated  of  in  a  previous  chap* 
fpr,  (V|.)  to  which  the  reader  i«  referred- 

(51 


CHAPTER  XXXiY. 


Publications  against  Convenience. 

Next,  every  publication  is  intrinsically  illegal, 
which  tends  to  produce  any  public  inconvenience 
or  calamity.  Under  this  division,  those  rank  the 
first  in  respect  of  the  magnitude  of  their  results, 
which  tend  to  interrupt  the  good  understanding 
which  prevails  between  this  country  and  others,  by 
malicious  reflections  upon  those  who  are  possessed 
of  high  rank  and  influence  in  foreign  states.  Since 
the  natural  tendency  of  these  is  to  involve  the  go- 
vernment in  a  foreign  war,  their  authors  have,  in 
several  instances,  been  punished  as  offenders  at 
Common  Law. — Thus,  in  the  case*  of  the  King  v. 
D'Eon,  an  information  was  filed  against  the  defen- 
dant by  the  Attorney-general,!  for  publishing  a 
libel  upon  the  Count  De  Guerchy,  who  was  at  that 
time  residing  in  this  kingdom,  in  the  capacity  of 
Ambassador  from  the  court  of  France.  The  infor- 
mation charged  the  defendant  with  an  intention  to 
defame  the  character  and  abilities  of  the  Count  De 

*  Easter  T.  4  G.  3.  1764.  K.  B.  MSS.  Dig-  L.  L.  88. 
t  Sir  Ftetchcr  Norton. 


4Stf 

Guerchy — to  render  him  ridiculous  and  contempt- 
ible— to  arraign  his  conduct  and  behaviour,  in  his 
character  of  Ambassador— :and  to  cause  it  to  be 
believed  that  he  had,  after  his  arrival  in  this  king- 
dom, been  guilty  of  unjust,  unwarrantable,  and 
oppressive  proceedings  towards  the  defendant  and 
his/riends ;  and  to  insinuate,  that  he  was  not  fit  or 
qualified  to  execute  the  office  and  functions  of 
Ambassador.  The  defendant  was  convicted. — 
Lord  George  Gordon*  was  found  guilty  upon  an  in- 
formation, for  having  published  some  severe  reflec- 
tions upon  the  Queen  of  France,  in  which  she  was 
represented  as  the  leader  of  a  faction ;  and  Mr.  Jus- 
tice Ashhurst,  in  passing  sentence,  observed,  that 
unless  the  authors  of  such  publications  were  pu- 
nished, their  libels  would  be  supposed  to  have  been 
made  with  the  connivance  of  the  state. — The  de- 
fendant, John  Vint,f  was  found  guilty  upon  an  in- 
formation, charging  him  with  having  published  the 
following  libel,  "  The  Emperor  of  Russia  is  ren- 
dering himself  obnoxious  to  his  subjects,  by  various 
acts  of  tyranny ;  and  ridiculous  in  the  eyes  of  Eu- 
rope, by  his  inconsistency ;  he  has  lately  passed  an 
edict,  to  prohibit  the  exportation  of  deals  and  other 
naval  stores.  In  consequence  of  this  ill-judged 
law,  a  hundred  sail  of  vessels  are  likely  to  return 
to  this  country,  without  their  freight,"  with  intent 
to  traduce  the  emperor  of  Russia,  and  to  interrupt 
and  disturb  the  friendship  subsisting  between  that 
country  and  Great  Britain. 

*  Hil.  28  G.  3.  The  defendant  was  sentenced  to  nay  a  fine  of  5001.,  to  be 
imprisoned  in  Newgate  for  the  space  of  two  years,  and  afterwards  to  give  secu- 
rity for  his  good  behaviour  for  the  space  of  fourteen  years.         t  40  G.  & 


481 

Jean  Peltier  was  found  guilty  upon  an  informa- 
tion charging  him  with  having  published  a  mali- 
cious libel,  with  intent  to  vilify  Napoleon  Bona- 
parte, the  Chief  Consul  of  the  French  Republic, 
and  to  excite  and  provoke  the  citizens  of  the  said 
republic  to  deprive  the  said  Napoleon  Bonaparte  of 
his  consular  dignity,  and  to  kill  and  destroy  him, 
and  to  interrupt  the  friendship  and  peace  subsisting 
between  our  Lord  the  King  and  his  subjects  and 
the  said  Napolean  Bonaparte  and  the  French  re- 
public. The  most  obnoxious  passages  of  the  libel 
were  these:  "  O  !  eternal  disgrace  of  France  ; — 
Ccesar,  on  the  banks  of  the  Rubicon,  has  against 
him  in  his  quarrel,  the  Senate,  Pompey,  and  Cato ; 
and  in  the  plains  of  Pharsalia,  if  fortune  is  unequal, 
if  you  must  yield  to  the  destinies,  Rome  in  this  sad 
reverse  at  least  remains  to  avenge  you  a  poignard 
among  the  last  Romans."  "  As  for  me,  far  from 
envying  his  (Bonaparte's)  lot,  let  him  name  (Icon- 
sent  to  it)  his  worthy  successor;  carried  on  his 
shield,  let  him  be  elected  Emperor."  "Finally, 
(and  Romulus  recalls  the  thing  to  mind,)  I  wish 
that  on  the  morrow  he  may  have  his  apotheosis. 
Amen !" — Upon  the  trial,  Lord  Ellenborough,  C. 
J.  referred  to  the  cases  of  Lord  George  Gordon  and 
Vint,  and  said,  "  I  lay  it  down  as  law,  that  any 
publication  which  tends  to  disgrace,  revile,  and 
defame  persons  of  considerable  situations  of-power 
and  dignity  in  foreign  countries,  may  be  taken  to 
be,  and  treated  as  a  libel ;  and  particularly  where 
it  has  a  tendency  to  interrupt  the  amity  and  peacfc 
between  the- two  countries." 


4S5 

By  the  statute  So  H.  8.  c.  14*  it  is  inade  felony 
to  declare  any  false  prophecy  upon  occasion  of 
arms,  fields,  or  letters. 

By  st.  5Eliz.  c.  15.  "If  any  person  advisedly  and 
discreetly  advance,  publish,  or  set  forth  by  writing, 
printing,  saying,  or  any  other  open  speech  or  deed, 
to  any  person  or  persons,  any  fond,  fantastical,  or 
false  prophecy,  upon  or  by  the  occasion  of  any 
arms,  fields,  beast,  badges,  or  such  other  like  things 
accustomed  in  arms,  cognizances,  or  signets,  or 
upon  or  by  reason  of  any  time,  year,  or  day,  name, 
bloodshed,  or  war,  to  the  intent  thereby  to  make 
any  rebellion,  insurrection,  dissension,  loss  of  life, 
or  other  disturbance,  within  the  realm,  &c,  upon 
the  first  conviction,  he  shall  suffer  one  year  impri- 
sonment, and  pay  a  fine  of  10/.,  and  for  a  second 
offence,  shall  suffer  imprisonment  during  life,  and 
forfeit  all  goods  and  chattels,  real  and  personal. 
But  it  is  provided,  that  no  one  shall  be  imprisoned 
for  any  offence  against  the  act,  unless  within  six 
months  after  the  offence  committed."! 

It  has  been  from  early  times  considered  as  an 
offence  at  Common  Law,  to  attempt  by  means  of 
false  rumours  to  raise  the  price  of  provisions,  or 
other  necessaries  of  life. 

In  43  Ass4  it  was  presented  that  a  Lombard 
did  procure  to  promote  and  enhance  the  price 
of  merchandise,  and  the  Lombard  demanded  judg- 
ment of  the  presentment  for  two  causes — 1.  That  it 

*  See  also  3  and  4  Ed.  6.  and  7  Ed.  6. 

t  By  23  Eliz.  c.  2.  it  was  made  felony  to  cast  the  nativity  of  the  Queen,  or 
to  seek  to  know  and  set  forth  bow  long  the  Queen  shall  live,  or  who  shall  reigu 
after  her  decease,  or  to  utter  any  false  prophecies  to  any  such  intent,  or  to  wish 
nr  desire  the  death  or  deprivation  of  the  Queen.  !   P-  38. 


486 

did  not  sound  in  forestalling  ;— 2.  That  of  his  en- 
deavour, or  attempt  by  words,  no  evil  was  put  in 
lire,  that  is,  no  price  was  enhanced ;  but  both  ob- 
jections were  overruled.  "  Whereby,"  says  Sir  E. 
Coke,*  "  it  appears  that  to  attempt  by  words  to 
enhance  the  price  of  merchandise,  was  punishable 
by  law,  and  did  sound  in  forestalment." 

And  from  the  same  reportf  it  appears,  that  to 
attempt  by  such  rumours  to  diminish  the  price  of 
any  staple  commodity,  to  the  prejudice  of  the  deal- 
ers in  general,  is  likewise  an  offence  at  Common 
Law;  for  it  is  there  said  "  Knivet  reported  that 
certain  people  came  to  Coteswold,  in  Hereford- 
shire, and  said,  in  deceit  of  the  people,  that  there 
were  such  wars  beyond  seas,  as  no  wool  could  pass 
or  be  carried  beyond  seas,  whereby  the  price  of 
wool  was  abated,  and  upon  presentment  thereof 
made,  they  appeared,  and  upon  their  confession, 
they  were  put  to  fine  and  ransom." 

Andint  Mich.  Term,  39  and  40  Eliz.  it  was,  after 
conference  and  mature  deliberation,  resolved  by  all 
the  Justices,  that  every  practice  or  device,  by  act, 
conspiracy,  words,  or  news,  to  enhance  the  price  of 
provisions,  or  other  merchandise,  was  punishable 
by  law. 

An  information§  was  filed,  charging  the  defen- 
dant, that  he,  intending  to  enhance  the  price  of 
hops,  did,  at  Worcester,  in  the  hearing  of  divers  hop 
dealers  and  planters,  declare,  that  the  then  present 
stock  of  hops  was  nearly  exhausted,  and  would  be 
exhausted  before  the  crop  of  hops  then  growing 

*  3  Ins.  896.  f  43  Ass.  p.  33. 

I  3  Ins.  196-  Bro-  lud.  pf-  40-  £  R.  v.  Waadington,  1  E-  143. 


487 

could  be  brought  into  the  market,  and  that  there 
would  soon  be  a  scarcity  of  hops,  with  intent  and 
design,  by  such  rumours  and  reports,  to  induce 
dealers  in  hops  not  to  carry  any  to  market  for  sale. 
When  the  defendant*  was  brought  up  to  receive 
judgment,  his  counsel  objected  that  the  counts 
charging  him  with  having  spread  rumours  to  en- 
hance the  price  of  hops,  did  not  averf  that  the  ru- 
mours were  false,  and  that  it  should  at  least  have 
been  stated,  that  the  price  of  the  commodity  had, 
in  fact,  been  raised  by  the  rumours.  But  there 
were  other  counts  in  the  information,  charging  the 
defendant  with  having  engrossed  large  quantities 
of  hops,  with  intent  to  prevent  the  same  from 
being  brought  to  market,  and  to  resell  the  same  at 
an  exorbitant  profit,  and  thereby  greatly  to  enhance 
the  price  of  hops  ;  and  the  defendant  was  adjudged 
to  pay  a  fine  of  500/.,  and  to  be  imprisoned  for  one 
month. 

The  court  does  not,  in  the  above  case,  appear  to 
have  given  an  express  opinion  upon  the  indictable 
quality  of  the  offence  described  in  the  two  first 
counts,  which  consisted  in  the  spreading  rumours 
generally,  with  intent  to  enhance  the  price  ;  nor  was 
this  necessary,  since  the  information  contained  inde- 
pendent charges  which  were  deemed  sufficient,  and 

*  He  was  convicted  before  Mr-  J.  Le  Blanc,  at  Worcester,  and  when  brought 
up  to  receive  sentence,  the  court,  out  of  mere  indulgence,  allowed  his  counsel 
to  go  fully  into  the  case,  saying,  that  if  it  appeared  that  judgment  ought  to  be 
arrested,  or  a  new  trial  granted,  the  defendant  should  not  be  precluded  from  the 
advantage- 

t  See  Haw.  P.  C.  c.80.  s-  1- 


48fe 

upon  which  the  judgment  appears  principally  to  have 
been  founded.  It  was  contended  by  the  counsel  for 
the  prosecution,  that  "  the  spreading  rumours,  whe- 
ther true  or  false,  if  done  with  a  mischievous  intent, 
to  produce  a  public  detriment,  is  indictable  upon 
general  principles  of  law,  in  the  same  manner  as 
publishing  a  libel,  however  true  the  facts  stated  may 
be ;  and  that  in  JollinVs  case,*  the  endeavouring  to 
procure  certain  persons  to  be  appointed  overseers, 
was  held  criminal,  though  the  criminality  consisted 
in  the  intent  only,  which  was  to  derive  a  private  ad- 
vantage." It  seems,  however,  to  be  clear,  that  no 
malice  will  render  an  act  indictable,  which  is  in  itself 
innocent  ;  the  question  therefore  is,  whether  the 
publication  of  real  facts  (the  knowledge  of  which 
may  affect  the  price  of  provisions  or  of  merchan- 
dise) can  be  considered  as  detrimental  to  the  com- 
munity ;  if  it  can,  then  a  mischievous  intention  (that 
is,  malice)  in  the  absence  of  rebutting  evidence,  is 
to  be  presumed  ;  if  it  cannot,  no  malice  can  render 
it  criminal.  In  many  cases,  the  publication  of  such 
facts  would  rather  affect  the  interests  of  individuals, 
than  those  of  the  community.  If,  for  instance,  a 
person  were  truly  to  publish,  that  the  foreign  mar- 
kets were  so  glutted  with  a  particular  commodity, 
that  British  wares,  of  the  same  description,  could 
not  be  sold  there,  the  report  might  operate  to  the 
immediate  prejudice  of  the  holders  of  that  article  ; 
but  the  prejudice  to  the  public,  namely,  their  exclu- 
sion from  the  foreign  market,  would  be  attributable 

1   1T.  R.2S6 


489 

purely  to  the  superfluity  which  prevailed  there,  and 
not  to  the  communication  made  by  the  defendant. 
It  is  said  to  have  been  resolved  by  all  the  Jialges, 
that  all  writers  of  false  news*  are  iu<  lictabl  a : .  •  ,un- 
ishabie;  and,  probably,  at  thi  da}  iiic  fabrication 
of  news  likely  to  produce  any  public  detriment 
would  be  considered  as  criminal. 

*  4  Read.  St.  L.     Dig.  L.  L.  23. 


m 


CHAPTER  XXXV. 


Publications  exciting  to  an  illegal  Act. 

Lastly,  the  mischievous  quality  of  the  commu- 
nication may  consist  in  its  tendency  to  excite  an  in- 
dividual to  the  commission  of  some  illegal  act. 

This  offence  may  consist  either  in  direct  solicita- 
tion, or  in  the  holding  out  some  indirect  but  forcible 
motive  to  the  commission  of  such  an  act. 

In  the  cases  of  high  treason,  petit  larceny,*  and 
misdemeanors,  all  advisers  are  considered  as  princi- 
pals, and  are  identified  with  them  as  to  all  penal 
consequences.  In  petit  treason,!  and  felonies  above 
the  degree  of  petit  larceny,  a  procurer  by  solicita- 
tion or  advice  is  punishable  as  an  accessory  before 
the  fact;  and  by  many  statutes  creating  new  offences, 
counsellors,  aiders,  and  abettors,  are  subjected  to 
specific  punishments. 

And  where  the  solicitation  is  not  followed  by  the 
actual  commission  of  the  offence  contemplated,  it 
is  perfectly  clear  that  the  adviser  is  liable  to  bei 
punished  for  his  wilful  attempt  to  violate  the  law, 
through  the  agency  of  another. 

*  Hal.  P.  C.  613.     4  BI.  Comm.  36-  t  1  Hal.  F-  C  615. 

t  R.  v.  Phillip?,  6  E.  464.    R.  v.  Sonthcrton,  6  E.  126.    R.  v.  Higgins,  2  E.  5. 


491 

And  secondly,  the  holding  out  any  indirect  but 
forcible  motive,  to  induce  the  commission  of  an  ille- 
gal act,  is  in  itself  indictable. — Thus,  it  is  not  only 
illegal  to  send  a  challenge  to  fight,  but  even  an  at- 
tempt to  provoke*  another  to  send  such  a  chal- 
lenge, is  a  misdemeanor,  since  the  endeavour  is 
an  act  done  towards  the  accomplishment  of  such 
crime,  f 

With  respect  to  communications  tending  to  acts 
of  personal  violence,  there  is  an  important  distinc- 
tion between  words  spoken,  and  written,  or  printed 
publications ;  the  former  are  not  indictable,  though 
scurrilous,  and  reflecting  upon  the  character  of  an 
individual,  and  even  addressed  personally  to  him, 
unless  they  |  amount  to  a  direct  solicitation  to  a  breach 
of  the  peace,  as  by  a  challenge  to  fight.  (1)  The 
defend ant§  said  to  the  mayor  of  Salisbury,  "  You, 
Mr.  Mayor,  are  a  rogue  and  a  rascal ;"  and  it  was 
held,  after  great  deliberation,  that  the  words  were 
not  indictable,  since  they  were  not  spoken  to  him 
in  the  execution  of  his  office  ;  that  if  they  had  been 
put  into  writing,  they  would  have  constituted  a  libel, 
which  would  have  supported  either  an  indictment 
or  an  action  ;  but  that  they  were  but  loose  and  un- 
mannerly words,  like  those  spoken  of  an  Alderman. 

*  By  22  G.  2-  c-  23-  "  If  any  person,  on  board  the  fleet,  shall  use  reproach- 
ful or  provoking  speeches  or  gestures,  tending  to  make  any  quarrel  or  disturb- 
ance, he  shall,  upon  being  convicted  thereof,  suffer  3uch  punishment  as  a  Com' 
Martial  shall  impose. 

t  6  E.  464.  X  6  Mod.  125.    Ld.  Ray.  1030. 

§  The  Queen  v.  Langley,  G  Mod-  125. 


(I)  See  post,  note  r3fi.l 


492 

of  Hull — "  When  he  puts  on  his  gown,  Satan  enters 
into  it,"  which  were  adjudged  not  indictable ;  and 
Holt,  C.  J.  said,  that  words  directly  tending  to  a 
breach  of  the  peace,  may  be  indictable  ;  but  other- 
wise, to  encourage  indictments  for  words,  would 
make  them  as  uncertain  as  actions  for  words  are. 

But  it  seems  perfectly  settled,  that  any  malicious 
defamation  of  any  person,  expressed  in  print  or  in 
Writing,  or  by. means  of  pictures  or  signs,  and  tend- 
ing to  provoke  him  to  anger  and  acts  of  violence, 
or  to  expose  him  to  public  hatred,  contempt,  and 
ridicule,*  amounts  to  a  libel  in  the  indictable  sense 
of  the  word.(l)  And  since  the  reason  is,  that  such 
publications  create  ill  blood,  and  manifestly  tend  to 
a  disturbance  of  the  public  peace,  the  degree  of 
discredit  is  immaterial  to  the  essence  of  the  libel, 
since  the  law  cannot  determine  the  degree  of  for- 
bearance which  a  party  reflected  upon  will  exert 
before  he  is  excited  and  provoked  to  acts  of  outrage, 
anti  therefore  prohibits  equally  all  imputations  con- 
veyed by  such  means,  and  possessing  such  a  ten- 
dency. 

The  grounds  of  the  distinction  between  oral  and 
written  provocation,  are  to  be  sought  after  in  practi- 
cal wisdom  and  experience,  rather  than  in  principle, 

*  3  Black.  Com.  150.     Haw.  PI.  Cr.  c  73.  s.  1.    5  Co.  125-    5  Mod.  165. 
Salk.  418.    Str.  422,  791.    12  Mod.  221.    Ld.  Ray.  416.    1  Sid.  270. 


(1)  4  Mass-  Rep.  168.  "  A  Libel  is  a  censorious  or  ridiculing  writing,  pic- 
ture, or  sign,  made  with  a  mischievous  and  malicious  intent  towards  govern- 
ment, magistrates,  or  individuals."  Per  Hamilton,  arguendo,  in  The  People  v. 
Croswell,  3  Johns.  Ca.  354.  Sanctioned  and  adopted  by  the  Court  in  the  case 
of  Steele  v.  Sovthwkk,  9  Johns-  Rep.  214- 


493 

inasmuch  as  the  tendency  to  produce  illegal  violence 
is  oftentimes  stronger  in  the  former  case  thaw  in  the 
latter :  for  instance,  contumelious  and  insulting  lan- 
guage is  more  likely  to  inflame  the  party  to  whom 
it  is  applied,  to  acts  of  outrage,  when  uttered  pub- 
licly in  his  hearing,  than  if  even  the  same  expres- 
sions were  to  be  conveyed  to  him  by  a  private  letter, 
when  the  insult  would  be  divested  of  its  main  ag- 
gravation,— its  publicity, — and  the  distance  of  the 
offended  party  from  the  aggressor  would  allow  the 
irritation  which  did  ensue  an  opportunity  to  subside, 
without  venting  itself  in  an  act  of  violence. 

Since  the  indictable  and  actionable  qualities  of  a 
libel,  upon  a  living  individual,  seem  to  have  been 
considered  as  co-extensive,*  what  has  been  said  in 
regard  to  the  extent  of  the  remedy  by  action,  may 
be  applied  as  the  measure  of  criminal  liability. 

Au  indictmentf  also  lies  for  a  libel  reflecting  upon 
the  memory  of  a  person  who  is  dead,  it  it  be  pub- 
lished with  a  malevolent  purpose  to  injure  his  family 
and  posterity,  and  to  expose  them  to  contempt 
and  disgrace  ;  for  the  chief  J  cause  of  punishing 
offences  of  this  nature,  is  their  tendency  to  a  breach 
of  the  peace  ;  and  although  the  party  be  dead  at 
the  time  of  publishing  the  libel,  yet  (according 
to  Lord  Coke)  it  stirs  up  others  of  the  same  fa- 

*  Skinn.  123.     2  Wils.  204.     Com-  Dig.  tit.  Libel,  c.  3.     Bac-  Ab.  tit.  Slan- 
der, 202.     3  Bl.  Com.  125.     2  Camp.  R.  511. 
t  5  Co.  125.     Haw  PI.  Cr.  c  73.  s.  1-     The  King  v.  Topham,  4  T,  R.  126. 
t  Haw.  PL  Cr-  c  73.  s.  3.    5  Co.  125. 


494 

mily,  blood,  or  society,  to  revenge,  and  to  break 
the  peace.(l) 

In  the  case  of  the  King  v.  Chrichley,*  an  informa- 
tion was  granted  against  the  defendant,  for  pub- 
lishing the  following  libel,  reflecting  upon  Sir  C. 
<*aunter  Nicoll,  Lady  Dartmouth's  father,  and  on 
the  government :  "On  Saturday  evening  died  of  the 
small  pox,  Sir  C.  (*<  Nicoll,  Knight  of  the  most  ho- 
nourable order  of  the  bath,  and  representative  in 
Parliament  of  the  borough  of  Peterborough.  He 
could  not  be  called  a  friend  to  his  country,  for  he 
changed  his  principles  for  a  red  ribband,  and  voted 
for  that  pernicious  project,  the  excise."  But,  as  was 
observed  by  Lord  Kenyon,  C.  J.  in  the  case  of  the 
King  v.  Topham,f  "  To  say  that  the  conduct  of  a 
dead  person  can  at  no  time  be  canvassed ;  to  hold 
that,  even  after  ages  are  past,  the  conduct  of  bad 
men  cannot  be  contrasted  with  that  of  the  good, 
would  be  to  exclude  the  most  useful  part  of  history." 
The  malicious  intention  of  the  defendant,  therefore, 
to  injure  the  family  and  posterity  of  the  deceased, 
must  be  expressly  averred  and  clearly  proved. 

And  it  is  not  necessary  that  the  libel  should  reflect 
upon  the  character  of  any  particular  individual,; 
provided  it  immediately  tend  to  produce  tumult  and 
disorder. 

An  information§  was  prayed  against  the  defend- 

*  4  T.  R.  129.  in  the  notes.        t  4  T.  R.  129. 

J  3  Bac.  Abr.  494.     2  Barnard,  K.  B.  13S-  166. 

§  The  King  v.  Osborne,  D.  L.  L.  79.     [S.  C    2  Swanst.  Rep.  503.] 


(1)  5  Binn.  281.     Skarff  v.  The  Commonwealth,  2  Binn-  514.. 


495 

ant  for  publishing  a  paper,  containing  an  account  ot 
a  murder  committed  upon  a  Jewish  woman  and  her 
child,  by  certain  Jews  lately  arrived  from  Portugal, 
and  living  near  Broad-street,  because  the  child  was 
begotten  by  a  Christian  ;  and  the  affidavit  set  forth, 
that  several  persons  mentioned  therein,  who  were 
recently  arrived  from  Portugal,  and  lived  in  Broad- 
street,  had  been  attacked  by  multitudes,  in  various 
parts  of  the  city,  barbarously  treated,  and  threatened 
with  death,  in  case  they  were  found  abroad  anymore ; 
and  it  was  objected,  that  no  information  could  be 
granted,  because  it  did  not  appear,  in  particular,  who 
the  persons  reflected  upon  were.    But  by  the  court, 
"  Admitting  that  an  information  for  a  libel  may  be 
improper,  yet  the  publication  of  this  paper  is  de- 
servedly punishable  in  an  information  for  a  misde- 
meanor, and  that  of  the  highest  kind  ;  such  sort  of 
advertisements  necessarily -tending  to  raise  tumults 
and  disorder  among  the  people,  and  inflame  them  with 
an  universal  spirit  of  barbarity,  against  a  whole  body 
of  men,  as  if  -uilty  of    rimes  scarcely  practicable, 
and  wholly  incredible."(l) 

It  may  be   objected,  that  when  a  party  is  pro- 


(1)  Rex  v.  Williams,  5  Barn.  &  Aid.  595.  1  Dow.  &  Ryl.  197-  Sumner  r, 
Buel  12  Johns  Rep.  475,  was  an  action  brought  by  Sumner,  an  ensign,  com- 
manding a  company  in  Col.  LoofcwiHWFs  Regiment,  against  Buel,  a  printer,  for  a 
publication  reflecting  on  tue  officers  of  the  regiment  generally.  The  Court 
(two  judges  of  the  five  composing  the  Court  dissenting,)  held,  that  the  plaintiff 
was  not  entitled  to  recover,  there  being  no  particular,  personal,  application,  and 
no  special  damage  alleged.  Thompson  C  J.  delivering  the  opinion  of  the  Court, 
said  "  It  is  a  general  rule,  that  no  writing  whatever  is  to  be  deemed  a  libel  un- 
less'it  reflects  on  some  particular  person.  {Hawk.  P.  C  b.  1.  ch.  73.  s  9.)  A 
writing  which  inveighs  against  mankind  in  general,  or  against  a  particular  order 
of  men,  is  no  libel,  nor  is  it  even  indictable.  It  must  descend  to  particulars 
and  individuals  to  make  it  a  libel-"     (2  Salk.  224.     lLd.Raym.43G.) 


496 

yoked  by  a  libel  to  acts  of  violence,  the  breach  of 
the  peace  is  to  be  attributed  to  the  hasty  temper 
of  the  person  provoked,  and  that  the  violation  of 
good  order  ought  to  be  visited  upon  him,  and  not 
upon  the  writer,  whose  language  supplies  no  justi- 
fication of  the  violence  committed.  The  answer 
seems  to  be,  that  though  the  party  violating  the 
peace  derives  no  justification  from  the  provocation 
offered,  this  circumstance  does  not  exculpate  the 
original  aggressor,  since  he  did  that  which  occa- 
sioned the  illegal  act,  and  which,  calculating  upon 
the  infirmities  of  human  temper,  was  likely  to  occa- 
sion it ;  the  offence  was  the  natural,  though  the  ille- 
gal consequence  of  the  publication;  the  defendant 
caused  it  to  be  committed ;  and  with  respect  to  the 
public,  it  is  immaterial  whether  he  directly  solicited 
another  to  break  the  law,  or  effected  the  same  end 
by  means  indirect,  but  equally  certain. 

The  principle  upon  which  a  party  is  made  re- 
sponsible for  an  offence  committed  at  his  instiga- 
tion, but  by  the  agency  of  another,  pervades  the 
whole  system  of  our  criminal  code,  and  applies 
strongly  to  the  case  of  libel ;  since  no  reasonable 
distinction  can  be  made  between  actual  solicitation 
and  any  other  means  of  procuration  known  to  be 
equally  powerful. 

An  actual  breach  of  the  peace,  is  therefore  a  con- 
sequence which,  upon  legal  principles,  is  to  be  at- 
tributed, in  some  degree,  to  the  author  of  the  libel 
which  excited  it,  and  his  attempt  to  produce  dis- 
order is  punishable  on  grounds  of  the  plainest  po- 
licy, inasmuch  as  it  is  wiser  to  prevent  the  evil  ap- 
prehended, by  a  timely  vigour,  than  to  wait  for  its 
maturitv. 


CHAPTER  XXXVI, 


Of  the  Defendants  Malice. 

To  constitute  a  crime  against  human  laws,  a  vi- 
cious will  must  concur  with  an  unlawful  act;*  and 
as  the  union  of  the  defendant's  wrongful  intention 
with  the  plaintiffs  loss,  creates  the  title  of  the  lat- 
ter to  damages,  so,  to  render  a  party  criminally  re- 
sponsible, the  act  obnoxious  to  the  public  must 
result  from  a  malicious  inind.f 

As  far,  therefore,  as  respects  the  intention 
of  the  party,  the  offence  against  the  public  is 
identified  with  the  injury  to  the  individual :  and 
the  cases  differ  only  in  the  nature  of  the  mischief, 
which,  in  the  former,  results  to  the  plaintiff,  in 
the  latter,  to  the  community; — the  observations, 
therefore,  which  have  been  already  made  upon  the 
nature  of  malice  in  its  legal  sense,  the  presumptions 
for  and  against  it,  and  the  evidence  relating  to  it, 
apply  equally  to  the  present  branch  of  the  subject. 

With  respect*  then,  to  the  question  of  malice,  the 

*  %  El.  Comm.  21. 

-t  Haw.  c.  73-  s.  1.    5  Co-  125-    5  Mod.  165.     SaJk.  413.    4  Bl„  Comip.  125, 
Str-  422-  791.     12  .Mod.  221.    R.  v.  Ld.  Abingdon,  1  Esj>   K.  228. 

63 


498 

cases  falling  within  the  criminal  as  well  as  within 
the  civU  division,  may  be  resolved  into  the  three 
classes  already  specified. 

1.  Where  the  actual  intention  of  the  party  is 
immaterial,  and  the  presumption  of  law  is  conclu- 
sive in  favour  of  the  defendant ;  as  where  the  pub- 
lication is  made  in  the  regular  course  of  parliamen- 
tary or  judicial  proceedings.* 

2.  Where  the  presumption  is  prima  facie  in  fa- 
vour of  the  defendant,  but  liable  to  be  rebutted  by 
proof  of  express  malice. 

3.  Where  the  presumption  is  against  the  defen- 
dant, and  the  law,  in  the  absence  of  any  justifying 
excuse  shown  by  the  defendant,  collects  an  evil  in- 
tention from  the  evil  tendency  of  his  act. 

It  has  already  been  seen  to  which  of  these  divi- 
sions the  defendant's  case,  under  its  particular  cir- 
cumstances most  properly  belongs ;  and  the  obser- 
vations already  made  are  equally  applicable  to  the 
criminal  proceeding,  with  the  following  exceptions, 

l.The  truth  of  a  publication  supplies  no  de- 
fence to  an  information  or  indictment.  The  reason- 
why  a  plaintiff  in  such  case  is  debarred  from  reco- 
vering a  compensation  in  damages,  has  already  been 
considered.  He  is  excluded  from  the  courts  by  his 
own  demerits;  but  to  the  criminal  proceeding, 
the  person  libelled  is  not  a  party ;  no  defect,  there- 
fore, in  his  claim,  can  avert  from  the  offender 
that  punishment  which  the  security  of  society  de^ 
mands.f 

*  Vid.  supra,  c.  10,  11. 

}  4  Bl.  Com.  151-    5  Rep.  125.    11  Mod.  99-    Bac.  Ab.  tit.  Lib.  455.    HoK 
■T53.     3  SaHc.  22fi.     Holt.  11.  422.     Haw.  P.  C.  c.  73.  s,  6. 


499 

Though  it  has  long  been  settled,  that  the  truth 
of  a  libel  is  no  defence  under  an  indictment,  it  may 
not  be  improper  to  offer  a  few  remarks  upon  a  doc- 
trine against  which  objections  have  been  frequently 
urged. 

The  two  essentials  to  constitute  an  indictable 
misdemeanor,  are,  the  mischief  resulting,  or  likely 
to  result,  to  society,  from  a  particular  act ;  and  the 
malicious  intention  of  the  actor,  to  effect  such  mis- 
chief;  and  hence  it  is,  that  every  wilful  attempt 
or  instigation,  director  indirect,  to  violate  the  law 
is  considered  as  criminal. 

The  policy  of  the  rule  seems  indisputable.  No 
society  can  tolerate  a  wilful  attempt  to  break  its 
laws ;  and  the  question  is,  whether  a  person  who 
publishes  concerning  another  that  which  is  true, 
but  which  is  likely  to  provoke  him  to  commit  an 
illegal  act,  may  not  fall  within  the  rule.  In  the 
first  place,  tiie  illegal  act  resulting  from  such  a  pub- 
lication, that  is,  the  breach  of  the  peace,  must  be 
considered  in  relation  to  society,  as  the  conse- 
quence of  the  publisher's  act;  for  though  the  de- 
famation will  by  no  means  justify  the  person  de- 
famed in  the  committing  any  act  of  violence,  par- 
ticularly where  he  has  been  guilty  of  that  which 
is  imputed,  yet  the  blame  is  at  least  partially  attri- 
butable to  him  who  wantonly  and  maliciously  did 
that  which  was  likely  to  occasion  the  illegal  conse- 
quence. 

The  right  of  every  person  to  publish  truth  in  the 
abstract  is  clear :  but  this  natural^privilege,  like  all 
others,  is  liable  to  be  abridged,  when  the  exercise 
of  it  becomes  pernicious.     The  law  affords  many 


)U0 

instances,  in  which  acts  in  themselves  innocent, 
are,  from  some  collateral  evil  accruing  to  the  pub- 
lic, considered  as  criminal.  Thus,  the  carrying  on 
a  particular  trade  may  be,  in  itself,  not  only  inno- 
cent, but  necessary ;  yet  it  becomes  illegal  when 
attended  with  circumstances  affecting  the  health 
and  comforts  of  those  who  reside  in  the  neighbour- 
hood. So  in  the  case  of  libel,  the  right  to  publish 
the  truth  in  general  is  plainly  distinguishable  from 
the  right  to  publish  when  the  publication  is  liliely 
to  be  attended  with  mischief :  in  such  case  the 
publisher  cannot  but  be  considered  as  the  author  of 
those  consequences  which,  knowing  the  infirmities 
of  human  nature,  he  caused  to  exist. 

Supposing,  then,  that  mischief  may  result  from 
publishing  the  truth,  can  such  publication  be  attri- 
buted to  a  malicious  disposition  to  effect  such  mis- 
chief? An  illegal  act  is,  in  contemplation  of  law, 
malicious,  when  it  is  effected  with  a  knowledge  of 
the  consequences  which  are  likely  to  ensue  ;  since 
every  person  must  be  presumed  to  have  had  that 
end  in  view  to  which  the  means  he  used  were 
adapted.  Though  the  immediate  object,  therefore, 
of  the  defendant,  maybe  to  wound  the  feelings  of 
an  individual,  yet,  if  the  obvious  tendency  of  his 
publication  be  to  exasperate  the  party  reflected  on 
to  acts  of  outrage,  he  must,  in  the  absence  of  all 
means  of  justification,  be  presumed  to  have  contem- 
templated  a  violation  of  the  public  tranquillity. 

Upon  these  principles,  as  far  as  regards  intention, 
it  is  immaterial  whether  the  charge  imputed  be  true 
or  false  ;  the  mischief  is  as  great  in  the  latter  case 
&$  in  the  former,  since  guilt  is  at  least  as  prone  to 


revenge  as  innocence  ;  and  it  is  clear,  that  truth  as 
well  as  falsehood  may  be  converted  into  the- instru- 
ment of  malice.*      These   observations    apply   to 
cases  where  the  act  can  be  attributed  to  no  motive, 
but  a  design  to  produce  misery  to  the  individual,  at- 
tended with  that  criminal  inattention  to  the  interests 
of  society  which  constitutes  malice  in  its  legal  sense. 
Where  the  defendant  can  show  that  he  had  in  view 
either  the  interests  of  society  in  general,  or  the  be- 
nefit of  the  individual,  however  mistaken  his  zeal 
maybe,  that  vicious  intention  is  wanting,  the  addition 
of  which  would  constitute  him  a  criminal.     As  far 
as  the  convenience  and  exigencies  of  society  require, 
every  person  is  justified  in  publishing  the  truth  ;  the 
prohibition  does  not   extend  beyond  communica- 
tions, originating  in  malice  and  terminating  in  mis- 
chief. 

In  theory,  perhaps,  there  may  be  some  room  for 
a  distinction  between  cases  where  the  offence  im- 
puted by  the  libel  is  of  an  indictable  nature,  and 
those  where  a  mere  immoral  act  is  charged  ;  in  the 
former,  if  the  fact  be  within  the  knowledge  of  the 
party,  he  is  bound  to  declare  it  to  the  proper  tribu- 
nal, for  the  purposes  of  justice,  and  would,  in  many 
instances,  be  liable  to  an  indictment  for  the  conceal- 
ment ;  but  where  the  act  is  of  a  mere  immoral  na- 
ture, as  of  ingratitude  or  hypocrisy,  no  avenue  for 
the  disclosure  is  appointed  by  the  law  ;  in  such  case, 
therefore,  it  seems  more  reasonable,  that  the  actual 
misconduct  should  be  made  known  at  the  discretion 
of  the  individual  acquainted  with  it.     As  far  as  oral 

*  £ee  Paley's  Moral  Philosophy,  oh.  <xn  SJaudcr 


communication  goes,  the  privilege  is  allowed  in  its 
fullest  latitude  ;  and  though  the  grounds  of  the  dis- 
tinction between  oral  and  written  publications  are 
not  always  obvious,  the  practice  of  centuries  may 
have  proved  oral  communication  to  be  sufficient  for 
the  purpose  of  restraining  the  unprincipled,  by  the 
dread  of  exposure,  without  extending  the  impunity 
to  the  more  deliberate  and  malicious  act  of  making 
the  same  disclosure  in  writing. 

But  though  the  truth  of  a  publication  (inasmuch 
as  it  may  consist  with  both  the  essentials  to  the 
offence)  cannot  constitute  a  distinguishing  boundary 
between  criminality  and  absolute  innocence,  yet 
it  may  materially  affect  the  measure  of  punishment 
For  this  purpose,  the  defendant  is  entitled  to  exhi- 
bit the  truth  of  that  which  he  has  asserted,  upon* 
affidavits  before  the  court,  and  may  verify  the  state- 
ment by  his  own  oath — an  advantage  of  which  he 
could  not  have  availed  himself  upon  the  trial  under 
any  circumstances. 

These  reasons,  which  have  been  urged  as  the 
ground  of  rejecting  evidence  of  the  truth  of  a  libel- 
lous charge  as  a  complete  defence  to  an  indictment 
or  information,  apply  to  cases  where  the  prosecutor 
is  really  guilty  of  the  criminal  or  immoral  act  im- 
puted :  in  other  instances,  the  same  principles  apply 
with  a  still  superior  force,  strengthened  by  circum- 
stances peculiar  to  themselves. 

Thus,  where  the  libel  consists  in  the  holding  up 
an  individual  to  ridicule,  by  exposing  some  person- 
al deformity,  in  a  lampoon  or  print,  the  truth  of  the 

■   Wis;.  L.  h-  16-     Bac.  Abr.  tit.  Lib.  41JSB: 


representation  would  certainly  aggravate  the  ridi- 
cule, and  would  by  no  means  lessen  the  malice  of 
the  author.* 

With  respect  to  libels  against  religion,  morality, 
or  the  constitution,  the  permitting  such  a  defence 
would  be  attended  with  consequences  almost  too 
absurd  to  mention.  Suppose  a  person  to  publish, 
that  no  overruling  providence  exists ;  or  that,  to 
break  a  promise  or  an  oath,  is  a  virtuous  act — could 
the  discussion  of  such  questions  be  tolerated  in  a 
court,  or  brought  to  issue  before  a  jury  ?  or  would 
proof  that  indecent  transactions  have  actually  occur- 
red, supply  any  excuse  for  the'  public  exhibition  of 
them  in  a  print  or  a  pamphlet  ? 

Where,  however,  an  indictment  is  expressly  framed 
upon  the  statutes  of  Scandalum  Magnatum,  it  may 
be  doubted  whether  the  truth  would  not  supply  a 
defence,  since  the  words  false  and  lies,  are  used  as 
descriptive  of  the  offence. f 

And  next,  it  has  been  seen,  that  it  is  a  good  de- 
fence to  an  action,  to  show  that  the  defendant,  at  the 
time  of  publication,  gave*  such  a  description  of  the 
author  of  the  slander  and  the  words  he  used,  as 
would  enable  the  plaintiff  to  bring  his  action.  And 
by  the  enactments  of  the  statutes  concerning  Scan* 
dalum  Magnatum,  it  appears  that  no  punishment 
was  intended  to  be  inflicted  in  case  the  defendant 
gave  up  the  author  of  the  false  tale,  and  that  the 

*  Puta  si  alter  pcenam  delicti  sui  sustinucrit,  aut  in  vitium  naturale  objiciatur- 
claudus  aliquis,  luscus,  aut  gibbosus  vocetur  veritatem  convicii  non  cxcusare  que* 
minus  animo  injuriandi,  id  factum  presumaUir,  confrarii  tamen  pvobatione,'m  Jii' 
admittendam-     Vinn.  in  In.  Just.  lib.  4. 

t  See  12  Rep-  13S-    2  Mod.  1 58. 


504 

imprisonment,  even  after  conviction,  was  to  ceast 
upon  the  offender's  discovering  the  first  mover  of 
slander.* 

It  does  not,  however,  appear,  that  such  a  defence 
to  an  indictment  at  Common  Law  has  been  allowed  ; 
nor  could  it,  in  principle,  be  admitted,!  since  the 
law  regards  not  the  truth  or  falsity  of  the  libel,  but 
only  its  tendency  to  provoke  to  a  breach  of  the 
peace  ;  and  therefore  who  was  the  author  seems 
immaterial,  provided  the  matter  published  possess 
such  a  tendency :  in  case,  however,  the  reporter 
communicating  the  slander  to  the  prosecutor,  should 
give  up  the  author,  the  fact  would  afford  some 
reason  to  infer,  that  the  communication  was  made 
with  a  good  intention,  and  did  not  proceed  from 
malice. 

*  Vid.  supra,  145. 

t  If  a  hteliwayman  shall  at  the  gallows  arraign  the  justice  of  the  law,  and  of 
those  who  condemned  him,  he  who  publishes  this  shall  not  go  unpunished,  4 
-flcad.  St.  Law,  154.     D-  L.  L.  23. 


oOo 


CHAPTER  XXXVII 


Of  the  Defendant's  Act. 

The  plaintiff1,  to  entitle  himself  to  damages  in  a 
civil  action,  must,  as  has  been  seen,  show  a  publica- 
tion made  by  the  defendant,  with  a  wrongful  inten- 
tion ;  and  whatever  has  been  said  upon  that  subject, 
applies  equally  to  the  criminal  proceeding,  with  this 
addition,  that  the  sending  of  a  libel  to  the  individual 
reflected  on,  without  exposing  the  contents  to  a 
third  person,  is  a  sufficient  publication  to  support 
an  indictment,  on  account  of  its  tendency*  to  pro- 
voke that  individual  to  commit  a   breach  of  the 

peace. (1) 

Thus  far  is  clear,  that  any  publication  of  a  libel, 
with  a  knowledge!  of  its  contents,  is  an  act  which 
renders  that  party  criminally  liable.  Upon  this 
branch  of  the  subject,  it  remains  to  be  inquired,  whe- 
ther the  offence  may  not  be  completed  by  some  act 

*  1  Will.  Saun.  132.  n.  2.  R.  v.  Cater,  4  Esp.  117.  5  Mod.  163.  12  Co. 
35.     1  Hob.  62.  215.  t  5  Rep.  125. 


(1)  Cluttcrbuck  v-  Chaffers,  1  Starkie's  Rep.  471.     1  Caines's  Rep.  583 

64 


506 

short  of  a  publication.  It  may  be  convenient,  tor 
the  sake  of  clearness,  first,  to  consider  the  different 
ways  in  which  a  man  may  be  instrumental  to  a  libel ; 
and  next,  how  far  that  instrumentality,  in  its  diiier- 
ent  degrees,  is  in  a  legal  view  criminal.  A  person 
may  become  instrumental, 

1st.  By  furnishing  ideas. 

2d.   By  committing  them  to  paper  or  print. 

3d.  By  preserving  a  libel. 

4th.  By  exposing  or  repeating  it. 

These  seem  to  comprehend  all  the  varieties  oi 
which  the  case  is  capable,  since  a  person  who  pro- 
cures any  of  these  to  be  done,  is  in  law  considered 
as  the  actor ;  and  the  copying  of  a  libel  falls  within 
the  second  description.  In  the  fourth  case,  the  acts 
described  amount  to  an  actual  publication,  of  whose 
criminal  nature  there  is  no  doubt,  and  which  may; 
for  the  present,  be  considered  as  out  of  the  question  ; 
and  with  regard  to  the  1st,  a  person  either  suggests 
the  matter  to  another,  for  the  purpose  of  committing 
it  to  writing,  or  writes  it  himself:  in  the  first  in- 
stance, he  may  be  considered  as  having  published 
the  libel  to  the  writer;  if  he  write  it  himself,  he  falls 
within  the  2d  description  ;  and,  therefore,  all  the 
predicaments,  exclusive  of  publication,  seem  con- 
fined to  the  committing  of  libellous  matter  to  writing, 
and  to  the  keeping  of  such  libels  in  possession. 

It  will  next  be  considered  howr  far  these  acts  are 
criminal. 

In  the  fifth  report  De  Libellis  Famosis,  the  4th 
resolution,  after  describing  the  different  species  of 
libels,  immediately  proceeds  to  point  out  the  differ- 
ent modes  of  publication  ;    and  then  observes.  "  Tt 


507 

was  resolved  in  the  Star  Chamber,  in  Halliwood's 
case,  that  if  one  find  a  libel  (and  would  keep  himself 
out  of  danger,)  if  it  be  composed  against  a  private 
man,  the  finder  either  may  burn  it,  or  presently  de- 
liver it  to  a  Magistrate ;  but  if  it  concern  a  Magis- 
trate or  other  public  person,  the  finder  ought  pre- 
sently to  deliver  it  to  a  Magistrate."  It  does  not 
appear  clear,  whether  this  procedure  was  prescribed 
as  a  strictly  legal  or  merely  as  a  moral  duty  and 
matter  of  prudence,  since  the  phrase,  "  if  he  would 
keep  himself  out  of  danger,"  is  abundantly  ambigu- 
ous. This  doubt,  however,  is  in  some  degree 
removed  by  reference  to  the  civil  law,  whence  the 
doctrine  is  said  to  have  been  derived ;  according  to 
which  it  seems,  the  finder  of  a  libellus  famosus  was 
not  punishable  for  the  mere  keeping  of  it  in  pos- 
session, but  for  the  improper  publication  of  it. 

Si  quis  famosum  libellum  sive  domi  sive  in  publico 
vel  in  quocunque  loco  ignarus  offenderit,  aut  discer- 
pat  priusquam  alter  inveniat,  aut  nulli  confiteatur 
inventum  ;  nam  quicunque  obtuierit  inventum,  cer- 
ium est  ipsum  reum  ex  lege  retinendum,  nisi 
prodiderit  auctorem ;  nee  evasurum  poenas  hujus- 
modi  criminibus  constitutas,  si  proditus  fuerit  cui- 
quam  retulisse  quod  legerit.* 

By  the  edicts  of  the  Emperors  Valentinian  and 
Valens : 

"  Si  quis  famosum  libellum  ignarus  repererit,f  aut 
corrumpat  priusquam  alter  inveniat,  aut  nulli  con- 
fiteatur inventum.  Si  vero  non  statim  easdem 
chartulas   corruperit  vel  igne    consumpserit,   sed 

*  Theort.  Cod.  Lib.  0.  tit.  34.  t  Cod.  lib.  9.  lit-  36. 


.)0S 

earum  vim  manifestaverit,  sciat  se  quod  auctorem 
hujusmodi  delicti  capitali  sententise  subjugandum." 
Again  in  the  Codex  Justinianus  de  famosis  libellis, 
"  Famosis  libellis  si  quis  scripserit  quod  pertineat  ad 
injuriam  alterius,*  de  qua  est  publica  accusatio  et 
poena  capitaiis,non  tantumin  auctorem  famosi  libelli, 
sed  etiam  in  eum  qui  invenit  nee  combussit  sed  evul- 
gavit ;  quia  iste  auctor  praesumitur  esse  libelli,  qui 
eum  sparsit  in  vulgus  non  prodito  auctore." 

Hence  it  may  be  collected,  that  the  finder  of  a 
libel  was  not  punishable  for  the  mere  keeping  of  it 
in  custody,  but  for  its  subsequent  publication ;  and 
therefore  it  seems  that  the  passage  in  the  resolution 
cited,  was  intended  rather  as  a  caution  against  the 
effects  of  a  publication,  which  a  party  risked  by 
keeping  the  libel  in  possession,  than  a  declaration 
that  the  keeping  of  it  in  possession  was  in  itself  a 
temporal  crime. 

With  respect  to  the  Star-chamber  practice,  that 
Court  does  not  appear  to  have  ever  punished  for 
the  mere  possession  of  a  libel ;  on  the  contrary,  as 
will  afterwards  be  noticed,  their  jurisdiction  was 
considered  as  doubtful,  even  where  there  had  been 
a  publication  by  sending  a  libel  to  the  party  defamed, 
1 — a  doubt  which  never  could  have  been  entertained, 
had  the  power  of  that  Court  to  punish  for  the  mere 
possession  been  considered  as  clearly  established. 
But  this  offence,  if  it  ever  existed  as  such  against 
the  law  of  this  country,  probably  did  not  survive  the 
Court  which  created  it. 

*  Cod.  lib.  9.  tit.  36- 


oOi) 

An  information*  was  exhibited  against  the  de- 
fendant, for  causing  to  be  framed,  printed,  and  pub- 
lished, a  scandalous  libel.     Upon  evidence  it  ap- 
peared, that  two  printed  libels  had  been  found  at 
the  lodgings  of  the  defendant,  upon   warrants  from 
the  principal  Secretary  of  State  to  search  there. 
The  opinion  of  the   Court  was,  that  this  was  no 
crime  within  the  information,  though  he  gave  no 
account  how  they  came  there;    and  that  the  having 
a  libel  in  possession  without  delivering  it  to  a  magis- 
trate,   was  punishable  in  the   Star-chamber  only. 
In  the  subsequent  case  of  the  King  v.  Beare,  Lord 
Holt,  C.  J.  is  reported  to  have  said,  that  the  col- 
lecting and  transcribing  of  libels,f  for  the  purpose 
of  publishing  them,  is  criminal,  though  no  publica- 
tion should  ever  take  place  ;    since  men  ought  not 
to  be  allowed  to  have  such  evil  instruments  in  their 
keeping.     But  in  another  report  of  the  same  case, 
the  defendant  having  been  found  guilty  of  writing 
and  collecting  certain  libels,  it  was  said,  that  the 
collecting  had  been  better  out  of  the  case  ;t    and  it 
is  clear  that  judgment  was  given  on  the  ground  that 
the  defendant  wrote  the  original  libel,  since  though 
Lord  Holt  intimated  that  the  bare  copying  of  a  libel 
was  criminal,  he  said  there  was  no  necessity  for  the 
opinion,  because  the  defendant  had  been  found  guilty 
of  writing  the  original.§ 

Upon  the  different  reports  of  this  case  Ld.  Camb- 
den  remarked:  "  If  all  this  be  law,  and  1  have  no 

*  Vent.  31.  E.  21  C  2.    15  Vin.  Ab.  89.  pi.  6.    Dig.  L.  L.  19. 
t  Carth.  409.    Holt.  R.  422.  I  Salk.  417.    Ld.  Ray.  414. 

S  2  Salk.  419. 


510 

right  at  present  to  deny  it,  whenever  a  favourite  li- 
bel is  published,  the  whole  kingdom  in  a  month  or 
two  becomes  criminal,  and  it  would  be  difficult  to 
find  one  innocent  jury  amongst  so  many  millions 
of  offenders."* 

With  respect  to  the  bare  fact  of  committing  libel- 
lous matter  to  print  or  writing,  the  nature  of  the 
act  appears  much  more  doubtful ;  since  though  it 
has  been  expressly  decided,  that  the  bare  act  of 
writing,  without  publication,  is  criminal  at  Com- 
mon Law,  the  grounds  of  that  determination  afford 
room  for  doubt. 

Under  the  jurisdiction  of  the  Court  of  Star-cham- 
ber, some  publication  appears  to  have  been  held 
essential  to  the  completion  of  the  offence ;  since, 
even  in  cases  where  libels  had  been  sent  to  the  in- 
dividuals libelled,  it  was  doubted  whether  the  Court 
had  jurisdiction, — a  question  which  never  could 
have  been  raised,  had  the  mere  act  of  writing  been 
sufficient  to  complete  the  offence. 

Thus,  in  the  casef  of  Dr.  Edwards  and  Dr. 
Wooton,  the  letter  had  been  written  to  Dr.  Edwards 
himself,  and  it  was  said,  that  the  defendant  should 
be  punished,  (although  it  was  solely  writ  to  the 
plaintiff  without  any  other  publication,)  in  the 
Star-chamber,  for  that  it  was  an  offence  to  the  King, 
and  a  great  motive  to  revenge.  And  the  same 
question  occurred  in  the  case  of  Barrow  v.  Llewel- 
Un,t  where  the  letter  had  been  sent  sealed  to  the 
party,  as  also  in  the  case  of  Sir  Baptist  Hicks  ;§ 

*  11  St.  Tr.  322.  t  12  Co.  35.    5  J.  1. 

'    1  Hob.  62.    13  J.  1.  $  Hob.  215- 


511 

and  no  instance  appears,  in  which  the  Star-chamber 
punished  for  a  libel  without  some  publication. 

In  the  case  of  Lewis  Pickering*  in  the  Star- 
chamber,  the  defendant  confessed  the  publishing  as 
well  as  the  composing  of  the  libel ;  and  in  the  re- 
solutions which  are  subjoined  to  the  case,  no  hint  is 
given  that  the  mere  making  of  a  libel  without  a  pub- 
lication would  be  punishable  in  that  Court ;  on  the 
contrary,  the  reasons  for  punishing  the  offence  of 
libelling  are  expounded,  and  are  such  as  can  ap- 
ply to  those  cases  onty  in  which  a  libel  has  been 
actually  published :  and  in  the  4th  resolution,  af- 
ter the  explanation  given  of  the  different  kinds  of 
libels,  the  various  modes  of  publication  are  imme- 
diately specified. 

In  Lamb's  casef  the  bill  was  exhibited  against 
the  defendants  for  the  publication  of  two  libels ; 
and  it  was  resolved,  that  "  every  one  who  shall  be 
convicted  in  the  said  case,  either  ought  to  be  a  con- 
triver of  the  libel,  or  a  procurer  of  the  contriving 
of  it,  or  a  malicious  publisher  of  it,  knowing  it  to 
be  a  libel;"  the  resolution  then  goes  on  to  expound, 
what  shall  amount  to  a  publication,  and  afterward 
repeats,  that  every  one  who  shall  be  convicted, 
ought  to  be  the  contriver,  procurer,  or  publisher  of 
it,  knowing  it  to  be  a  libel.  Upon  the  face  of  this 
resolution  it  appears  doubtful,  whether  the  con- 
triver and  procurer  were  considered  as  severally 
punishable  for  their  acts,  though  no  publication 
should  take  place  ;  or  whether  the  resolution  does 
not  suppose,  in  the  first  place,  that  the  offence  has 

•   S  Co,  125.    3  J.  1 .  t  9  Rep.  59.    8  S.  1 . 


512 

been  completed  by  a  publication,  and  then  pro- 
ceeds to  define  what  degree  of  agency  shall  render 
any  party  concerned  responsible  for  the  whole  ef- 
fect produced.  In  favour  of  the  former  construc- 
tion it  appears,  that  the  actors  are  separately  and 
disjunctively  enumerated  as  liable  to  be  convict- 
ed; and  this  interpretation  was  adopted  by  Lord 
Holt.  In  support  of  the  latter  construction,  it 
may  be  observed,  that  the  words,  "every  one  who 
shall  be  convicted  in  the  said  case,"  refer  immedi- 
ately to  the  case  of  the  defendants,  who  were  pro- 
secuted for  publishing  two  libels ;  that  in  the  sub- 
sequent part  of  the  resolution  it  is  said,  "  If  the  de- 
fendant write  a  copy  of  a  libel,  and  do  not  publish 
it  to  others,  it  is  no  publication ;"  which  affords 
some  reason  to  infer,  that  a  publication  was  deemed 
in  all  cases  necessary  before  any  conviction  could 
take  place  ;  since  the  passage,  if  understood  in  this 
sense,  that  a  person  who  commits  a  libel  to  writing 
is  not  punishable,  unless  he  afterwards  publish  it,  is 
sensible  and  intelligible  ;  but  if,  on  the  other  hand, 
the  construction  be  this,  that  a  person  who  writes 
a  libel,  but  does  not  publish  it,  is  not  punishable  as 
the  publisher,  but  is  nevertheless  liable  as  the  con- 
triver, as  was  contended  for  in  the  case  King  v. 
Beere, — then  the  passage  is  a  piece  of  idle  tauto- 
logy, and  amounts  to  no  more  than  this,  that  a  per- 
son, who  does  not  publish  a  libel  which  he  has 
written,  is  not  guilty  of  a  publication.  The  reso- 
lution afterward  proceeds  to  say,  "but  it  is  great 
evidence,  that  he  published  it,  when  he,  knowing  it 
to  be  a  libel,  writeth  a  copy  of  it."  Upon  which 
it  may  be  observed,  that  the  resorting  to  presump- 


513 

live  evidence,  by  making  the  act  of  writing  proof  of 
publication,  would  be  nugatory,  if  that  act  of  itself 
constituted  a  distinct  and  substantive  offence. 

Samuel  Paine,  a  minister,  was  tried  upon  an  in- 
formation,* setting  forth  that  he  was  the  composer, 
author,  and  publisher  of  a  malicious  libel  against 
the  late  Queen  Mary,  styled  "  Her  Epitaph  "  The 
Jury  found,  by  way  of  special  verdict,  that  a  cer- 
tain person,  to  them  unknown,  did  pronounce,  dic- 
tate, and  repeat  the  words  contained  in  the  libel 
which  the  defendant  did  write ;  and  if  that  will 
make  him  guilty  of  the  composing  and  making  of 
the  libel,  then  they  find  him  guilty,  and  as  to  the 
publication,  they  find  him  not  guilty.  After  argu- 
ment the  Court  observed,  "  the  making  of  a  libel  is 
an  offence,  though  never  published  ;  and  if  one  dic- 
tate and  another  write,  both  are  guilty  of  making  it ; 
to  what  purpose  should  any  one  write  or  copy  after 
another,  but  to  show  his  approbation  of  the  con- 
tents of  a  libel,  and  the  better  to  enable  him  to 
keep  it  in  his  memory,  and  repeat  the  contents  of 
it  to  others."  The  matter  was,  however,  adjourned, 
and  it  does  not  appear  that  any  judgment  was 
given. 

The  defendant  Beeref  was  found  guihy  of  wri- 
ting and  collecting,  but  acquitted  of  the  making  and 
composing  of  several  libels  stated  in  the  indictment. 
Upon  motion  in  arrest  of  judgment,  Holt  C.  J.  said, 
"  Before  I  come  to  the  objections  against  the  ver- 
dict, I  shall  consider  whether  it  be  not  criminal  to 

*  5  Mod.  163.     1  Salk.  281.     Comb.  358.     Carth.  405.     1  Ld.  Ray.  720 
Holt.  294. 
t  Ld.  Ray.  417.    Carth.  409.    12  Mod.  219.    2  Salk.  417 

f>5 


514 

write  a  libel,  although  a  man  be  not  the  composer 
or  contriver  thereof."  The  learned  Judge  ob- 
served, that  it  is  the  putting  of  the  words  into  wri- 
ting, which  is  the  essence  of  the  offence ;  for  the 
party  is  not  guilty,  unless  he  put  the  words  into  wri- 
ting ;  and  that  in  all  cases  where  a  man  does  an  act, 
which  act  causes  the  thing  to  be  what  it  is,  such  an 
one  is  to  be  considered  the  doer  of  it ;  that  in  all 
lower  offences  procurers  are  principals,  so  that  if 
A.  hold  B.  whilst  C.  beats  him,  A.  is  guilty  of  the 
battery ;  that  Lamb's  case  was  to  be  expounded  by 
the  same  case  in  Moor,*  in  which  it  was  reported 
to  have  been  resolved,  that  the  writer  of  a  libel  is, 
in  law,  the  contriver ;  but  that  in  Lamb's  case  the 
question  was  not  concerning  the  writing  or  making, 
but  about  the  publication  thereof,  and  it  was  held, 
that  the  writing  of  a  copy  of  a  libel,  as  indeed  the 
writing  of  the  original  libel  itself,  is  no  publication 
thereof,  but  only  an  evidence  of  publication;  that 
the  question  was  not  how  far  the  writing  of  a  libel 
was  criminal,  but  whether  the  writing  of  a  copy  be 
a  publication,  which  indeed  it  is  not ;  that  the  case 
of  John  De  Northampton  is  apposite,  who  was 
charged  with  writing  only,  without  any  mention  made 
of  publication,  and  who  confessed  the  writing  only. 
The  learned  Judge  also  expressed  his  opinion,  that 
the  copying  of  a  libel  was  a  libel,  because  it  com- 
prehends all  that  is  necessary  to  make  it  a  libel,  the 
same  scandalous  matter,  and  the  same  mischievous 
consequences  ;  since  it  is  by  this  means  perpetu- 
ated, and  may  come  to  the  hands  of  other  men,  and 


913 


515 

be  published  after  the  death  of  the  copier  ;  and  that 
if  men  might  take  copies  of  them  with  impunity, 
then  the  printing  of  them  would  be  no  offence,  and 
then  farewell  to  Government. 

Turton  and  Rokeby,  Justices,  were  of  the  same 
opinion,  and  referred  to  several  cases,*  to  prove  that 
writing  a  libel  without  publishing  it,  was  punishable 
in  the  Star-chamber. 

.  The  parallel  drawn  by  Lord  Holt,  in  the  above 
case,  seems  objectionable,  since  it  assumes  the  of- 
fence to  have  been  completed.  It  A.  hold  B.  whilst 
C.  beats  him,  A.  is  guilty  of  the  beating,  but  the  of- 
fence, that  is,  the  battery,  here  is  completed  ;  to  sup- 
pose then,  that  the  case  in  question  analogous  to  it 
is  to  assume  that  the  offence  of  libelling  is  complete 
without  a  publication ;  the  question  was  not  whe- 
ther an  aider  or  abettor  to  an  offence  actually  com- 
mitted was  punishable  as  a  principal,  but  whether 
any  offence  had  in  fact  been  consummated,  or  the 
whole  rested  in  mere  intent  and  preparation,  as  if 
A.  had  supplied  C.  with  a  stick  for  the  purpose  of 
beating  B.,  but  no  battery  had  actually  taken  place. 

Neither  do  the  cases  relied  upon  appear  applica- 
ble :  in  that  of  John  de  Northampton!  it  is  stated, 
that  the  letter  ivas  written  to  John  Ferrers,  one  of 
the  King's  counsel ;  and  the  confession  runs  thus  : 
"  Et  quia  pr&dictus  Johannes  cognoscit  dictam  lite- 
ram  per  se  scriptam  Roberto  de  Ferrers,  fyc.  ;"  now 
if  "  written  to"  merely  imported  the  address  of  the 
letter,  which  never  passed  from  the  defendant,  there 
was  no  occasion  to  confess  the  writing  of  it  to  Ro- 

*  Hob.  62.  815.    12  Co.  35.  t  31ns.  174. 


bert  de  Ferrers,  and  the  very  same  terms  "  written 
to"  are  used  by  Sir  E.  Coke,  in  his  12th  Report,  to 
imply  a  sending  as  well  as  writing. 

The  cases  cited  by  Turton  and  Rokeby,*  Jus- 
tices, are  inapplicable  ;  since  in  those  instances 
there  was  a  publication  of  the  libel  to  the  party 
defamed. 

Knellf  was  tried  upon  an  information  charging 
him  with  having  printed  and  published  a  libel,  enti- . 
tied  "Mist's  Weekly  Journal."  It  was  proved  that 
the  defendant  was  a  printer's  servant,  and  his  busi- 
ness was  to  prepare  the  type  for  printing  off,  which 
business  was  called  composing  for  the  press ;  that 
the  defendant  and  another  composed  together  the 
libel  in  question,  taking  the  alternate  columns.  For 
the  defendant  it  was  objected,  1.  that  since  the  de- 
fendant took  a  distinct  part,  that  which  he  composed 
could  not  bear  the  construction  put  upon  the  whole  ; 
and  c2dly,  that  since  he  composed  only,  he  could  not 
be  found  guilty  of  the  printing  wherewith  he  was 
charged.  It  was  answered,  that  in  misdemeanors, 
an  accessory  in  part  is  a  principal  in  the  whole,  and, 
therefore,  as  the  defendant  assisted  in  the  com- 
posing, a  circumstance  essential  to  the  printing,  he, 
by  that  act,  made  himself  concerned  in  the  whole  ; 
that  composing  was  taking  a  copy  in  types,  which 
would  make  the  defendant  a  publisher,  since  it  had 
often  been  determined  that  the  taking  of  a  copy  of 
a  libel  was  an  act  of  publication.  But  the  Chief 
Justice  directed  the  Jury  to  acquit  the  defendant  of 


*  Hob  62.  215.    12  Co.  35. 

+  Hil.  3  Q-.  9.     Barnard.  K.  B.  305.    D.  L.  L-  25. 


51? 

the  publication,  and  if  they  believed  the  evidence, 
to  find  him  guilty  of  the  printing,  which  they  did 
accordingly.* 

Upon  the  whole,  whatever  doubt  may  exist  as  to 
the  criminal  nature  of  the  act  where  it  is  confined  to 
the  mere  writing,  printing,  or  preserving  of  a  libel, 
it  seems  perfect!)  clear  that  every  person  who  mali- 
ciously lends  his  aid  to  the  construction  of  a  libel, 
subsequently  published,  or  who  contributes  to  the 
publication  of  one  already  made,  with  a  knowledge 
of  its  contents,  is  indictable  as  a  principal  for  the 
whole  mischief  produced. 

And  according  to  the  doctrine  laid  down  in 
Lamb's  case,f  where  a  libel  has  been  published, 
proof  that  the  defendant  committed  it  to  writing, 
or,  by  parity  of  reasoning,  did  any  other  act  contri- 
buting to  its  existence,  is  great  evidence  that  he 
published  it,  unless  he  can  satisfactorily  explain  the 
motive  of  his  act. 

*  The  defendant  was  afterwards  sentenced  to  stand  upon  the  pillory  twice, 
and  to  be  kept  to  hard  labour  in  Bridewell  lor  lue  spacy  of  six  months.  D.  L„ 
L.  124.    T-  Carter  was  convicted  and  punished  for  a  similar  offence.    9  St.  Tr. 

t9Co- 


CHAPTER  XXXVIII. 


Proceedings  against  Offenders. 

The  proceedings  against  offenders  are  either  sum- 
mary, as  by  their  immediate  apprehension  and  im- 
prisonment ;  by  attachment,  by  binding  over  to  the 
good  behaviour  ;  or,  in  the  more  usual  mode,  by  in- 
formation or  indictment.  The  summary  process  is 
in  general  founded  upon  contemptuous  language  and 
reflections  applied  to  those  who  preside  in  courts  of 
justice  and  their  proceedings  ;  and  such  contempts 
are  either  direct,  where  a  judge  or  magistrate  is 
openly  insulted  in  the  execution  of  his  office,  or 
consequential,  where  the  offender,  by  speaking  or 
writing  contemptuously  of  the  court,  or  its  judges 
in  their  judi  ial  capacity,  reflects  upon  the  autho- 
rity by  which  they  were  appointed,  and  creates  a 
prejudice  against  the  administration  of  justice.  And 
first,  where  the  insult  is  offered  in  the  face  of  the 
court  by  the  use  of  contumelious  language,  demon- 
strating the  want  of  that  respect  and  regard  which 
is  essential  to  the  preservation  of  its  authority,  the 
offender,  it  is  said,  may  be  instantly  apprehended. 


519 


lined,  or  imprisoned,  at  the  discretion  of  the  judge, 
without  further  examinational) 

This  doctrine  appears  to  extend  to  all  cases  where 
contemptuous  words  are  spoken  in  the  presence  of 
a  magistrate  in  the  actual  discharge  of  his  duty. 
As  if  a  man  should  say  to  a  justice  of  the  peace  in 
the  execution  of  his  office,  "  You  are  a  roguef  and 
a  liar,"  or  tell  the  judge  of  a  Court  Leet  that  he  is 
a  fool4  oris  forsworn,§  or  say — "  If  I  cannot  have 
justice  here,  I  will  have||  it  elsewhere."  And  though 
the  judge  may  elect  to  proceed  in  this  summary 
mode,  yet,  if  he  does  not,  the  offen  ser  is  liable  to 
an  indictment,  since,  wherever  a  justice  may  com- 
mit for  a  contempt,  the  party  may  be  indicted  for 
the  misdemeanor.^! 

Where  the  contempt  is  not  offered  immediately 
in  the  face  of  the  court,  but  consists  in  insolent 
comments  upon  the  court  or  its  proceedings,  or  in 
the  indecent  publication  of  matters  still  pending,  the 
effect  of  which  may  be  to  create  prejudice  and  par- 
tiality, and  thereby  to  hinder  the  fair  administration 
of  justice,  the  proceeding  is  by  attachment,  w  hich 
is  a  process  from  a  Court  of  Record,  awarded  by  the 

*  Cro.  Eliz.  78.    2  Roll.  Ab.  78.    4  Bl.  Coram.  286.    Staun.  P.  0.  73.  b. 
t  Str.420.    Ow.  113.    Mo.  470.    Cro.  El.  581.  J  Cro.  Eliz.  78. 

g  2  Roll.  Ab.  78.  II   1  Sid.  144.    1  Keb.  508.  IT  Str.  420- 


(1)  The  King  v.  Davidson,  4  Barn.  &  Aid.  340,  opinion  of  Best,  J.  Upon 
ihe  trial  the  defendant  was  fined  three  times  by  the  judge,  (Best)  once  20*.  and 
uto  fines  of  40Z.  each. 


5^0 

justices  at  their  discretion,  upon  a  suggestion,  or 
upon  their  own  knowledge.*(l) 

It  may  be  considered  here,  from  what  courts,  for 
what  words,  and  upon  what  suggestions,  an  attach- 
ment  issues. 

It  appears,  generally,  that  an  attachment  may  be 
granted  by  any  of  the  superior  courts  oi  Westminster 
Hall  against  any  persons  guilty  of  contempts  ag  inst 
them.  When  a  party,  not  present  in  court,  pub- 
lishes any  contemptuous  expressions  against  the 
court  or   its  proceedings,  the  court,  will,  upon  an 

*  2  Haw.  213.  vid.  Wils.  300. 


(1)  Hollingsworlh  v.  Duane,  Wall.  Itep.  77.  Respub.  v.  Passmure,  3  Yeates, 
441.  Respub.  \.  Oswald,  1  Dall.  319.  The  People  v.  Freer,  1  Caines's  Rep. 
484,  518.  In  Pennsylvania  it  provided,  by  the  Act  of  3d  April,  1809,  (5  Sm. 
Laws,  55,)  "That  the  power  of  the  Judges  of  the  several  Courts  of  this  Com- 
monwealth, to  issue  attachments  and  inflict  summary  punishments  for  contempts 
of  Court,  shall  be  restricted  to  the  following  cases,  that  is  to  say — To  the  official 
misconduct  oi  the  officers  of  such  Courts  respectively,  to  the  negligence  or  dis- 
obedience of  officers,  parties,  jurors,  or  witnesses  against  the  lawful  process  of 
the  Court,  to  the  misbehaviour  of  any  person  in  the  presence  of  the  Court,  ob- 
structing the  adminisi  ration  ol  justice.  All  publications  out  of  Court  respecting 
the  conduct  of  the  judges,  officers  of  the  Court,  jurors,  witnesses,  parties,  or  any 
of  them,  of,  in,  and  concerning  any  cause  pending  before  any  Court  of  this  Com- 
monwealth, shall  not  be  construed  into  a  contempt  of  the  said  Court,  so  as  to 
render  the  author,  printer,  publisher,  or  either  of  them,  liable  to  attachment  and 
summary  punishment  for  the  same  ;  but  i!  such  publication  shall  improperly 
tend  to  bias  the  minds  of  the  public,  the  Court,  the  officers,  jurors,  witnesses, 
or  any  of  them,  on  a  question  pending  before  the  Court,  any  person  feeling  him- 
self aggrieved  by  such  publication,  shall  be  at  lioerty  either  to  proceed  by  indict- 
ment, or  to  bring  an  action  at  Law,  against  the  author,  printer,  publisher,  or 
either  of  them,  and  recover  such  damages  as  a  jury  may  think  fit  to  award.  The 
punishment  of  imprisonment  in  the  first  instance,  .hall  extend  only  to  such  con- 
tempts as  are  committed  in  open  Court,  and  all  other  contempts  shall  be  pun- 
ished by  fine  only  :  Provided,  that  the  Sheriff,  or  other  proper  officer,  may  take 
into  custody,  confine  or  commit  to  jail  any  person  fined  for  a  contempt,  until 
such  fine  is  discharged  or  paid  ;  but  if  he  shall  be  unable  to  pay  such  fine,  such 
person  may  be  committed  to  prison  by  the  Court  for  any  time  not  exceeding 
href  months" 


521 

affidavit  of  the  tact  make  a  rule  upon  him  to 
show  cause  why  an  attachment  should  not  be 
granted  against  him  ;  and  in  some  cases,  where  the 
offence  is  of  a  very  flagrant  nature,  will  grant  an 
attachment  in  the  first  instance. 

Upon  a  rule  granted*  against  the  defendant 
Wiatt,  to  show  cause  why  an  attachment  should 
not  issue  as:  ainst  him  tor  publishing  a  libel  on  the 
Court  of  King's  Bench,  the  defendant  showed 
by  affidavit  that  his  fault  was  not  wilful,  but  merely 
through  ignorance,  that  he  had  the  libel  from  one 
Crownfield,  a  printer  in  Cambridge  ;  that  it  was  in 
Latin,  a  language  which  the  defend  mt  did  not  un- 
derstand, and  that  he  did  not  know  who  was  the 
author,  otherwise  than  by  a  letter  which  he  re- 
ceived from  the  printer,  and  which  was  affixed 
to  the  affidavit,  by  which  letter  it  appeared  that 
Dr.  Middleton  was  the  author.  On  this  it  was 
moved,  that  the  rule  should  be  discharged ;  but 
the  rule  was  continued  on  the  defendant  until  he 
made  out  his  allegation  against  the  printer,  who 
was  therefore  joined  in  the  rule,  that  both  of  them 
might  be  before  the  court.  In  the  next  term, 
Dr.  Middletonf  appeared,  and  confessed  that  he 
was  the  author  of  the  book  ;  the  rule  was  then  dis- 
charged against  the  publisher  and  printer,  and 
the  doctor  was  committed  until  further  considera- 
tion. After  a  few  days  confinement  he  was  brought 
into  court,  fined  50/.,  and  bound  to  his  good  beha 
viour  for  a  year. 

•  s  Mod.  123.  t  Fort.  R-  301 

m 


5£^ 

A   fule*    was   granted  to   show   cause   why    an 
attachment  should  not  issue  against  Elizabeth  Mayer 
and  Dowling,  for  publishing   a  libel  on   the   pro- 
ceedings of  the  court  in  the  trial  of  Lady  Lawley. 
Elizabeth  Mayer    produced    an   affidavit,    stating, 
that  her  husband  kept  a  pamphlet  shop,  that  in  his 
absence  Vaughan  came  to  the  shop  and  asked  for 
Lady  Lawley's  trial,  that  she  did  not   know  that  it 
was  in  the  shop,  but  searching,  found  it,  and  refused 
to  sell  it  to  Vaughan,  but  permitted  him  to  read  it. 
The  court  said   it  was   beyond   all   question  that 
attachments    had  been  granted  in   such  cases,  and 
particularly  alluded  to  Dr.  Middleton's  case.     The 
court  in  general  agreed  to  discharge  the  rule  as  to 
her,(l)  and  said  they  could  not  make  the  rule  abso- 
lute as  to  Dowling,  because  there  was  no  affidavit  of 
service. 

A  rule  having  beenf  obtained  to  show  cause  why 
an  information  should  not  be  granted,  the  defendant 
on  being  served  with  the  rule  showed  his  disregard 
of  it  in  very  contemptuous  language.  Upon  a  mo- 
tion for  an  attachment,  grounded  upon  this  con- 
tempt, Northy,  Attorney-general,  insisted  that  he 
ought  to  be  first  heard  to  show  cause  against  it ;  but 
the  court  said,  "  He  shall  answer  it  in  custody,  for 
it  is  to  no  purpose  to  serve  him  with  a  second  rule 
who  has  slighted  and  despised  the  first ;  it  would 
be  to  expose  the  court  to  further  contempt." 

*  Mich.  8  G.  2.  1732.    2  Barnard.  43.  K.  B.  t  1  Salk.  84. 


(1)  The  intent  of  a  publication  will  not  justify  it,  if  it  be,  in  the  opinion  of 
the  Court,  a  contempt.     The  People  v-  Freer,  1  Caines's  Kep.  518. 


■)23 

And  where  the  court  apprehend  that  the  attach- 
ment will  be  forcibly  resisted,  they  will  order  the 
Sheriff'  of  the  county*  to  take  with  him  a  force  suf- 
ficient for  its  due  execution.  But  it  seems  that  the 
court  will  not  grant  an  attachment  inf  the  first  in- 
stance, unless  the  words  be  sworn  to  by  two  wit- 
nesses, since  otherwise  it  would  be  in  the  power 
of  one  hardy  man  to  hinder  another  of  an  opportu- 
nity of  defending  himself  before  he  was  deprived  oi 
his  liberty ;  and  when  contemptuous  words  are 
spoken  of  the  court,  the  rule  for  attachment  is 
granted  in  the  first  instance ;  but  where  they  are 
spoken  of  its  process,  a  rule  to  show  cause!  only  ; 
and  the  court  will  punish  for  contemptuous  words 
spoken  on  the  delivery  of  a  declaration§  in  eject- 
ment. 

When  the  party  has  been  brought  into  court,  he 
is  either  committed,  in  order  to  answer  interrogato- 
ries, or  is  permitted  to  enter  into  a  recognizance  with 
two  sureties,  in  such  sum  as  the  court  shall  direct, 
to  appear  and  make  answer  upon  oath  to  such  inter- 
rogatories||  as  shall  be  exhibited  against  him. 

And  it  is  said,^[  that  the  party  cannot  confess  the 
contempt  and  throw  himself  upon  the  mercy  of  the 
court,  except  in  cases  of  rescue  and  of  contempts 
committed  in  the  face  of  the  court.  If  the  party  be 
discharged  upon  his  recognizance**  to  answer  in- 
terrogatories, and  none  be  exhibited  within  four  days 
after  entering  into    such   recognizance,   the   court 

*  1  Sir.  185.  f  1  Sir.  185.    3  At.  219.    Say.  Rep.  114. 

I  Tidd.  428.    vid.  Sir.  185.  1068.  $  Sfr.  567. 

II  Haw.  P.  C.  c.  22. «.  1.    Barnard.  K.  B.  58. 
f  1  HI.  649.  6.    vide  4  Bl.  Coram.  284. 

•4    Haw.  P.  C   r.22-  <=.  1.     5  T.  B.  36? 


•324 

will  discharge  it  upon  motion ;  but  if  no  such  mo 
tion  be  made,  the  court  will  compel  him  to  answer 
interrogatories  exhibited  after  the  four  days.  Upon 
these  interrogatories  examinations  are  taken,  and 
it  is  referred  to  the  Master  of  the  Crown  Office  to 
make  his  report ;  the  party*  is  then  either  acquitted 
or  adjudged  to  be  in  contempt. 

If  the  party,  in  his  answer,  purge  himself  from 
the  charge  upon  oath,  though  he  is  liable  to  a  pro- 
secution for  the  perjury,!  if  he  has  sworn  falsely, 
he  must  nevertheless  be  acquitted  of  the  contempt, 
and  his  answer  cannot^  be  disproved  by  adverse  and 
contradictory  affidavits. 

Next,  by  requiring  sureties  of  the  peace,  or  for 
the  good  behaviour  of  the  party. — It  seems  agreed, 
that  the  publication  of  a  libel,  does  not  amount  to  a 
breach  of  the  peace,  but  rests  in  tendency  only. 

In  Dalton's  Justice, §  a  libel  is  defined  as  a  thing 
tending  to  the  breach  of  the  peace  ;  in  Sir  Baptist 
Hicks's||  case,  it  is  called  a  provocation  to  a  breach 
of  the  peace  ;  and  in  th^  King^f  v.  Summers,  it  was 
held  to  be  cognizable  before  Justices,  because  it 
tended  to  a  breach  of  the  peace  ;  and  in  Hawkins's 
Pleas  of  the  Crown,**  and  Sir  William  Blackstone's 
Commentaries,!!  a  libel  in  the  criminal  sense  is  also 
defined  by  its  tendency.  In  the  case  of  the  King  v. 
Wilkes,  the  court  of  Common  Pleasi|  gave  a  decided 
opinion  to  the  same  effect.  And  L.  C.J.  Pratt  ob- 
served, "I  cannot  find  that  a  libeller  is  bound  to 
find  surety  of  the  peace  in  any  book  whatever,  nor 

*  B.  R.  H.  23.  t  6  Mod.  73.  |  4  Bl.  Comm.  288.  $  289- 

i|  Hob  224.  If  Lev.  1 3f»-         **  r.  73.  s.  S-  tt  4  Bl.  C  150. 

It  2Wils-  15*, 


o2b 


ever  was  in  any  ease  but  one,  viz. — the  case  of  the 
seven  Bishops,  where  three  Judges  said,  that  surety 
of  the  peace  was  required  in  the  case  of  libel :  Judge 
Powell,  the  only  honest  man  of  the  four  Judges, 
dissented  ;  and  I  am  bold  to  be  of  his  opinion,  and 
to  say,  that  the  case  is  not  law.  Upon  the  whole, 
it  is  absurd  to  require  surety  of  the  peace  in  the 
case  of  a  libeller."  And  it  was  held  in  the  above 
case,  that  though  surety  of  the  peace  might  be  re- 
quired in  the  case  of  libel,  it  could  not  exclude  the 
privilege  of  a  member  of  either  House  of  Parliament, 
who  is  entitled  to  privilege  from  arrest,  in  all  cases 
except  treason,  felony,  and  actual  breach  of  the 
peace ;  and  the  decision  of  the  court  in  the  pro- 
ceeding against  the  seven  Bishops,  who  were  com- 
mitted to  the  Tower  for  not  entering  into  recog- 
nizances after  having  published  an  alleged  libel,  in 
their  petition  to  the  King,  was  strongly  repro- 
bated^ 1)  But  it  has  been  the  practice,  from  very 
early  times,  to  require  security  for  the  good  be- 
haviour from  persons  publishing  contumelious  and 
disrespectful  words  concerning  ministers  and  offi- 
cers of  justice,  and  their  proceeds  gs. 

It  appears  from  the  3d  Institute,*  that  in  the  reign 


174. 


:  (1)  Surety  for  good  behaviour  was  taken  by  Shippen  C  J.  and  M'Kean,  J. 
from  W.  Cobbett,  before  conviction,  he  being  charged  with  the  publication  of 
numerous  libels,  and  upon  the  recognizance,  suits  were  instituted  and  judgments 
obtained  against  Cobbett  and  his  sureties-  (Respub.  V.  Cobbett,  3  Dall.  467, 
Comm.  v.  Dames.  Cornm.  v-  North,  1  Binn.  97  )  Chief  Justice  Tilghman, 
however,  refused  to  require  such  surety  in  the  case  of  The  Comm.  v.  Duane,  (1 
Binn.  99,)  before  conviction,  though  be  thought  there  might  be  occasions  on 
tvhich  it  might  be  proper  and  necessary  to  insist  upon  it 


S$6 

of  Edward  the  3d,  John  de  Northampton,  an  Attor- 
ney of  the  King's  Bench,  was  committed  to  the 
custody  of  the  Marshal,  for  having  written  a  letter 
reflecting  on  the  conduct  of  the  Justices  ;  and  that 
he  afterwards  found  six  mainpernors  for  his  good 
behaviour 

And  it  s  ems  that  sureties  for  the  good  behaviour 
may  be  required  from  any  person*  who  applies  con- 
temptuous or  disrespectful  language  to  ai  y  Judge, 
Justice  of  the  Peace,  Mayor,  or  other  civil  Magis- 
trate, though  he  be  not  in  the  actual  execution  of  his 
duty,*  and  though  the  words  have  no  relation  to  his 
office. 

And  that  the  rule  extends  to  general  words  of 
disparagem  nt  spoken  of  such  Magistrates  in  their 
absence  ;f  but  Lord  Holt,  C.  J.  intimated,  that  this 
ouyht  not  to  be  done  by  the  offended  Justice,  but 
by  one  of  his  brethren. t  And  the  same  learned 
Judge,  in  the  Queen  v.  Langley,§  after  observing 
that  binding  to  the  good  behaviour  was  sufficient  to 
secure  the  authority  of  Mayors,  added,  that  it  must 
be  done  instantly,  according  to  Dr.  Bonham's||  case. 
It  seems,  however,  from  the  general  current  of 
decisions  upon  this  point,  which  are  very  perplexed 
and  contradictory,  that  the  words  must  eithei  have 
been  spoken  in  the  piesence  of  the  Magistrate;  or 
if  in  his  absence,  have  in  some  way  affected  him  in 
his  office.     In  other  cases  it  might  not  be  prudent 


*  Cro.  El.  78.    Salk.  697.    Haw.  P.  C.  c.  61.  s.  2.    6  Mod.  124.    Holt.  654. 
Str.  420. 
t  Cro.  El.  78.    1  Lev.  52.  s.  2.  s.  3.    11  Mod.  117.    Cro-  Eliz.  689.  contra, 
t  12  Mod-  514-  $  6  Mod.  124.  H   Stiles.  251. 


in  a  Magistrate  to  commit  for  want  of  sureties,  since 
he  does  it  at  his  peril,  the  case  of  commitment  must 
be  expressed  with  certainty  upon  the  face  of  the 
warrant  ;*  and  in  case  it  should  prove  insufficient,  he 
would  be  liable  to  a"  action  for  false  imprisonment. 

But  it  seems  perfecly  clear,  that  for  ui  mannerlyf 
expressions,  used  in  the  face  of  a  Court  of  Justice, 
though  not  applied  to  the  Court  or  its  proceedings, 
or  for  words  spoken  for  the  purpose  of  deterring  an 
inferior  officer,  as  a  Constable,  from  the  execution^ 
of  his  office,  or  abusing  him  while  discharging  his 
duty,  the  offender  may  be  bound  to  his  good  be- 
haviour. 

With  regard  to  mere  rash,  quarrelsome,  uncivil 
words,  in  general,  it  seems  that  sureties  cannot  be 
demanded  from  the  speaker,  unless  they  either 
amount  to  a  direct  solicitation  to  break  the  peace  or 
scandalize  the  government,  by  abusing  those  who 
are  intrusted  b^  it  with  the  administration  of  justice  ; 
or  be  uttered  with  intent  to  deter  an  officer  from  the 
execution  of  his  duty.§  It  has  been  already  seen, 
that  for  a  libel  in  general,  sureties  for  the  peace  are 
not  demandable  ;  but  where  a  letter  contains  a 
direct  challenge,  the  same  security  for  the  good  be- 
haviour may  be  required  as  it  the  words  had  been 
spoken. 

*  Per  Walmesly,  J.,  Dean's  case,  Cro.  EI.  689. 

t  1  Lev.  107.    1  Keb.  558.  t  Haw.  P.  C.  c.  61.  s.  2.  3. 

§  Haw.  P.  C  c.  61.  s.  3-    Cro.  Car.  498,  499.    Cro.  El.  286-    Pal.  120 


m& 


it  is  said,  a  recognizance  to  keep  the  peace  may 
be  forfeited  by  mere  words,  but  they  must  directly 
tend  to  a  breach  of  the  peace,  as  by  a  challenge  to 
fight  in  the  party's  presence.*  (1) 


*  4  Burn's  Jus.  353. 


(1)  A  recognizance  for  the  good  behaviour  of  the  party  accused  of  publishing 
libels,  is  forfeited  by  the  publication  of  a  libel-  Respub.  v.  Cobbett.    3  Yeates,  93, 


CHAPTER  XXXIX 


Proceeding  by  Information. 

With  the  exception  of  those  cases  where  a  de- 
fendant has  been  guilty  of  a  contempt,  no  punish- 
ment can  be  inflicted  upon  him  for  any  malicious 
publication,  unless  he  shall  have  been  previously 
convicted  of  the  fact  upon  the  oath  of  twelve  Jurors. 
There  are  two  modes,  by  either  of  which  the  matter 
may  be  subjected  to  their  verdict : — by  an  informa- 
tion, exhibited  in  the  name  of  the  King,  or  by  the 
finding  of  a  bill  by  a  Grand  Jury.(l) 

Note.  As  to  the  great  antiquity  and  acknowledged  legality  of  the  proceeding 
by  information  see  the  argument  of  Sir  Bartholomew  Shower,  1  Show.  Rep.  106, 
4  Bl-  Comm.  305-  Whence  it  appears  to  have  been  as  ancient  as  the  law  itself. 
To  introduce  any  discussion  upon  the  subject  of  informations  would  be  incon- 
sistent with  the  object  of  this  treatise  ;  since,  in  the  first  place,  informations 
are,  in  point  of  law,  no  more  connected  with  the  subject  of  libel  than  they  are 
with  any  other  misdemeanor ;  and  in  the  second,  no  doubt  can  possibly  rest 
upon  the  legality  of  a  practice  which  has  prevailed  for  centuries,  and  been  sanc- 
tioned by  at  least  two  acts  of  the  legislature.  4  and  5  W.  and  M.  c.  18.  43 
G.  3.  c.  58. 


(1)  The  Constitutions  of  Pennsylvania,  Kentuckij,  Mississippi,  and  Illinois, 
provide  that  no  persons  shall  for  any  indictable  offence,  be  proceeded  against 
criminally  by  information,  unless  by  leave  of  the  Court,  for  oppression  and  mis 
'-meaner  in  office-     The  Constitution  of  Delaware,  contains  a  general  prohi* 

«7 


530 

Informations  are  of  two  descriptions',  they  are 
either  filed  by  the  Attorney-general  as  the  immedi- 
ate officer  of  the  crown,  or  by  the  Master  of  the 
Crown  Office  upon  the  complaint  of  a  private  indi- 
vidual. The  objects  of  those  informations  which 
are  filed  by  the  Attorney-general,  are  those  offences 
which  manifestly  tend  to  excite  and  produce  some 
great  public  mischief ;  but  in  what  cases  it  may  be 
necessary  to  call  in  aid  this  process  is  a  matter  rest- 
ing in  the  discretion  of  that  officer,  whose  duty  it  is, 
as  the  immediate  agent  of  the  crown,  to  bring  under 
the  cognizance  of  the  Court  all  offences  and  abuses 
which  are  of  so  dangerous  a  nature  as  to  render  im- 
mediate attention  necessary. 

In  case  of  libels  this  power  has  been  exercised 
where  they  tend  to  subvert  religion  or  morality ; 
to  excite  discontent  against  the  Constitution,  the 
King,  or  his  Government ;  to  involve  the  country 
in  foreign  wars,  or  to  excite  particular  classes  of 
people  to  acts  of  tumult  and  outrage ;  but  it  has 
not  been  usual  for  the  Attorney-general  to  interfere 
where  the  libel  has  affected  a  private  individual 
only. 

With  respect  to  the  other  species  of  information, 
which  are  sometimes  granted  by  the  Court  of  King's 
Bench  at  the  instance  of  a  private  person  : 


uition  against  the  proceeding  by  information,  and  does  authorize  the  Court  to 
permit  it  in  the  case  of  oppression  and  misdemeanor  in  office.  Cases  arising 
in  the  land  or  naval  forces,  and  in  the  militia  when  in  actual  service,  in  time  of 
war  or  actual  danger,  are  expressly  excepted.  In  JCetC'York,  the  proceeding  by 
information  has  been  abolished  by  statute.  See  also  the  5th  Art.  of  the  amenr- 
ir^nts  to  the  Const,  of  the  tt.  States. 


531 

"These  were  formerly  filed  at  the  suggestion  of  the 
applicant  by  the  Master  of  the  Crown  Office,  and 
at  the  discretion  of  that  officer,  without  any  direct 
application  to  the  Court ;  but  the  practice  was  put 
an  end  to  by  st.  4  &  5  W.  &  M.  c.  18.  which  enacts 
that  the  Clerk  of  the  Crown  shall  not  file  any  in- 
formation without  an  express  direction  from  the 
Court  of  King's  Bench.  It  may  be  proper  to  ad- 
duce a  few  instances,  to  show,  the  general  principles 
by  which  the  Judges  of  the  Court  of  King's  Bench 
have  been  guided  in  the  exercise  of  this  branch  of 
their  jurisdiction,  and  to  refer  to  the  regulations 
which  they  have  thought  fit  to  prescribe  to  relators 
requesting  their  interposition. 

In  the  case*  of  the  King  v.  Staples,  an  information 
was  granted  against  the  defendant  for  having  pub- 
lished in  a  newspaper,  called  the  York  Journal,  that 
"  Richard  Thompson,  an  Alderman  of  York,  and  a 
Justice  of  the  Peace,  was  scandalously  guilty  of  tell- 
ing a  lie  in  divers  companies,  viz.  that  the  said  Sta- 
ples had  asked  Mr.  Thompson  pardon  for  publishing 
in  the  same  newspaper  that  he  Mr.  Thompson  was 
married  to  one  Mrs.  W."  and  upon  granting  the  in- 
formation, Page  J.  observed  that  the  applying  of 
such  words  to  a  Magistrate  was  an  aggravation. 

The  defendant  Sharpej  published  in  a  newspaper 
an  affidavit  of  bastardy,  which  lie  stated  to  have 
been  sworn  before  Sir  William  Billers,  a  Magistrate, 
by  a  woman,  without  its  having  been  read  by  her  ; 
and  the  Court  on  granting  the  information  were  of 
opinion,  that  the  publication  of  the  affidavits  was 

*  And.  229.     Dig.  J... L.  80.  t  Antfr.  384.  the  Ktng  v.  Sharpe. 


punishable,  though  no  scandalous  reflections  were 
made  upon  the  case,  especially  as  they  tended  high- 
ly to  defame  a  Magistrate. 

The  defendant,*  in  a  conversation  about  a  warrant 
which  had  been  granted  by  Mr.  Kent,  a  Justice  of 
the  Peace,  asked  if  Mr.  Kent  was  a  sworn  Justice, 
and  being  answered  that  he  was,  replied,  "  If  he  is 
a  sworn  Justice,  he  is  a  rogue  and  a  forsworn  rogue ;" 
but  the  Court  refused  an  information,  saying,  it  is 
not  the  same  insult  and  contempt  as  if  spoken  to 
him  in  the  execution  of  his  office,  which  would 
make  it  a  matter  indictable.  So  where  the  defend- 
ant! said  of  a  Justice  of  the  Peace,  "  He  is  an  old 
rogue  for  sending  his  warrant  to  me,"  the  Court  re- 
fused an  information  leaving  it  to  the  party  to  proceed 
by  indictment. 

Where  the  libel  imputed  to  a  navalt  commander 
the  want  of  courage,  knowledge,  resolution,  and  ve- 
racity ;  to  a  peer,§  that  he  acted  improperly  as  Pre- 
sident of  a  Court  Martial,  and  that  he  had  been 
guilty  of  perjury,  the  Court  granted  informations. 
The  defendant j|  published  in  a  newspaper,  entitled 
"  The  Gazetteer,"  the  following  libel  on  the  Earl  of 
Clanricarde,  whose  Countess,  to  whom  he  had  been 
some  time  married,  was  then  living,  "Last  night 
the  Right  Honourable  the  Earl  of  Clanricarde  was 
married,  at  St.  Mary's  church,  to  Madame  Caro- 
lina, a  celebrated  dancer  belonging  to  the  theatre 
at  Smock-alley,  and  last  Saturday  they  appeared  in 

*  The  King  r.  Pocock.    Sir.  1157.  t  R.  v.  Lee,  12.   Mod.  514. 

I  Trin.  32.  G-  2.  the  King  v.  Dr.  Smollett. 

§  The  King  v.  Philip  Thicknesse,  Esq.    Hil.  3.    G.  3.   D  L,  L.  86. 

II  Tr.  T.   1  Geo.  3.    Dig.  I-  L.  85- 


a83 

the  boxes  at  Crow-street  Theatre  :  she  had  jewels 
on  computed  at  upwards  of  3000/."  An  informa- 
tion was  granted.  So  where  the  libel*  imputed 
treasonable  designs  to  a  nobleman,  an  information 
was  granted.  And  the  Court  will  grant  informations 
without  regard  to  the  rankf  or  dignity  of  the  parties 
traduced,  whenever  their  immediate  interference 
appears  necessary  for  the  purposes  of  justice.  The 
libel  complained  of  charged  several  Jews,  lately  ar- 
rived from:}:  Portugal,  with  the  murder  of  a  Jewish 
woman  and  her  child,  because  the  father  of  it  was 
a  Christian,  and  thereby  exposed  them  to  the  fury 
of  the  populace  :  an  information  was  granted. 

An  information  was  exhibited  against  the  defend- 
ant Brown  for  printing  and  publishing  in  a  newspa- 
per, called  "  The  Royal  Chronicle,"  a  libel§  enti- 
tled, "  An  authentic  narrative  of  several  particulars 
relating  to  the  death  of  Miss  Frances  Lynes,  whose 
ghost  is  supposed  to  have  haunted  a  house  in  Cock- 
lane,  West  Smithfield,  for  many  nights  past,"  tend- 
ing to  traduce  and  vilify  the  reputation  of  one  Wil- 
liam Kent,  and  to  represent  and  cause  it  to  be  be- 
lieved, that  the  said  William  Kent  had,  by  artful 
means  and  circumstances,  obtained  and  procured 
the  last  will  and  testament  of  the  said  Frances 
Lynes,  spinster,  since  deceased,  to  be  made,  and 
unjustly  to  cause  the  validity  of  the  said  will  to  be 
called  in  question,  and  also  to  raise  groundless  sus- 
picions concerning  the  death  of  the  said  Frances 
Lynes ;  and  also  to  cause  a  false  and  scandalous 


*  Doug.  337.  t  Doug.  387.    K-  v.  Bate. 

♦  Bac  Ab.  tit  Lib.  494.  §  E.  T.   2  Geo.  3.  D.  L.  L.  S4. 


534 

report  raised  and  propagated  by  means  of  public 
newspapers,  that  the  spirit  or  ghost  of  the  said 
Frances  Lynes  haunted  the  house  of  one  Parsons  in 
Cock-lane,  to  be  believed  and  credited  in  order  to 
injure  and  oppress  the  said  William  Kent. 

Mr.  Willy  Sutton  was  tried  for  the  murder  of  Miss 
Bell,  at  the  Old  Bailey,  on  which  occasion  his  inno- 
cence appeared  so  clear,  that  the  Jury  interfered 
before  the  learned  Judge,  who  presided,  had  begun 
to  sum  up  the  evidence.  An  information  was  after- 
wards granted*  against  Thomas  Holland  for  writing 
a  libel  on  Sutton,  in  a  pamphlet  entitled  "A  most 
circumstantial  account  of  that  unfortunate  young 
lady,  Miss  Bell,  otherwise  Sharpe." 

When  a  motionf  was  made  for  an  information 
against  the  defendant  for  publishing  reflections  upon 
the  African  Company  in  one  of  the  newspapers,  b}r 
charging  them  with  having  supported  their  trade  by 
treachery  and  fraud,  the  Court  refused  to  interfere, 
considering  the  matter  nothing  more  than  a  dispute 
upon  a  matter  of  trade  ;  but  the  Court  granted  a  rule 
to  show  cause  why  an  information  should  not  be 
granted  for  a  libel  against  the  New-York  Buildings' 
Company,  charging  them  with  raising  the  value  of 
their  stock  by  getting  100,000/.  under]:  the  credit  of 
their  seal. 

But  it  seems,  that  in  general,  the  imputation  must 
be  of  a  personal  and  criminal  nature  to  induce  the 

*  Dig.  L.  L.  82.    East.  7.    1  G.  3.  R.  v.  Holland- 
1   The  King  v.  Roberts.     Dig.  L.  L.  89.    2  G.  2.  1 720 
I  2  Barnard,  E,  D.  114,    R.  v.  Nutt-  P.  I-.  I,.  78. 


0$i) 

Court  to  interfere,  and  that  it  is  not  sufficient  that  it 
tends  to  lessen  a  man*  in  his  trade. 

In  the  case  of  the  King  v.  Roberts,  an  information 
was  refused  against  the  defendant!  for  having  pub- 
lished in  a  newspaper,  that  Ward's  pills  and  drops 
had  done  great  mischief  in  twelve  different  cases, 
and  that  they  were  a  compound  of  poison  and  an- 
timony. 

And  in  general  where  there  is  reason  to  suppose 
from  the  circumstances  under  which  the  party  pub- 
lished, that  the  act  did  not  proceed  from  a  mere 
malicious  intention,  the  Court  will  not  interfere  by 
granting  an  information. 

The  defendant:*:  advertised,  that  one  Maddox,  an 
apothecary,  had  personated  Dr.  Crow,  a  physician, 
and  taken  his  fees,  and  an  information  was  refused, 
the  apothecary  not  pretending  to  deny  the  charge. 

When  a  man  advertised  in  a  public  newspaper, 
that  his  wife  had  eloped  from  him,  and  cautioned  all 
persons  against  trusting  her,  an  information  for  a 
libel  being  moved  for,  it  was  denied,  because  it  was 
the  only  way§  the  husband  could  take  to  secure 
himself. 

It  was  advertised  in  one  of  the  newspapers, ||  that 
Lady  Mordington  kept  an  assembly  in  Moorfields, 
upon  which  Lord  Mordington  advertised,  that  the 
person  calling  herself  Lady  Mordington  was  an  im- 
postrix,  and  that  there  was  no  such  person,  except 

*  Andr.  229.    2  Barnard,  K.  B.  1S3.    Dig.  L.  L.  90.  c.  3.    Bac.  Ab.  492- 
1  Dig.  L.  L.  90.    Bac.  Ab.  tit.  Lib.  492. 

I  R.  v.  Bickertou,  Str.  498.     R.  v.  Webster,  3.  T.  K.  338.    Dougl-  270-  37( , 
«,  R.  v.  Enes.  Andr.  229.    D.  L.  L.  89- 
I  R.  v.  Jenneaur,  Easter,  Q  G.  2,    Bac.  \b-  tit  Lib.  '"  ! 


his  wife,  who  always  lived  with  him.  Upon  motion 
for  an  information  it  was  refused  by  the  Court,  since 
the  term  impostrix  was  properly  applied  to  one  as- 
suming the  title  without  any  right. 

So  where  the  imputation  is  continued  in  a  petition 
drawn  up  for  the  purpose  of  obtaining  redress  for 
an  injury,  and  not  with  an  intention  to  asperse  the 
prosecutor,  the  Court  will  not  grant  an  informationj 
though  the  publication  impute  fraud  to  the  prose- 
cutor, since  it  is  no  more  than  is  alleged  in  every  bill 
in  Chancery. 

The  defendant*  complained  in  a  writing,  directed 
to  General  Wills  and  the  four  principal  officers  of 
the  Guards,  in  order  to  be  presented  to  the  King, 
that  Captain  Carr,  after  inducing  him  to  part  with  a 
warrant  for  some  money  due  to  him  from  Govern- 
ment, under  the  pretence  of  procuring  payment  for 
liim,  received  the  money,  and  refused  to  pay  it  to 
the  defendant.  Upon  motion  for  an  information,  the 
Court  held  that  the  petition  was  no  libel. 

Miss  Mary  Jerome,!  a  Quaker,  residing  at  Not- 
tingham, having  acted  in  disobedience  to  the  rules 
prescribed  by  the  sect  of  which  she  was  a  member, 
by  frequenting  places  of  public  diversion,  going  into 
mourning  for  the  death  of  a  relation,  and  by  other 
transgressions  of  a  similar  nature,  the  society,  after 
many  fruitless  remonstrances  and  other  useless  at- 
tempts to  reclaim  her,  proceeded  at  last  in  the  cus- 
tomary way  to  pronounce  the  sentence  of  expulsion, 
which,  having   been   approved   of   at  a    monthly 

*  Andr.  229.    3  Bac.  Ab.  lit.  Lib.  492. 

\  2  Burn's  Ecclesiastical  Law.  779.     Dig.  L.  L.  39. 


:rdl 


meeting,  was  afterwards  read  by  the  defendant, 
Francis  Hart,  as  clerk  of  their  meeting.  The  sen- 
tence, after  charging  Miss  Jerome  with  having  im- 
bibed erroneous  notions  contrary  to  Scripture  doc- 
trine, and  having  acted  in  various  parts  of  her  conduct 
very  inconsistently  with  a  life  of  self-denial,  and  of 
having  neglected  to  attend  the  meetings  for  divine 
worship,  and  reciting  tue  fruitless  attempts  of  the 
society  to  reclaim  her  from  error,  and  to  bring  her 
to  the  acknowledgment  of  truth,  both  in  judgment 
and  practice,  proceeded  to  declare  her  no  longer  in 
unity  with  the  society.  Miss  Jerome,  being  ac- 
quainted with  this  proceeding,  sent  her  maid-servant 
to  the  defendant  for  a  copy  of  the  sentence,  which 
he  transcribed  and  enclosed  to  her  under  cover ;  but 
upon  application  to  the  Court  for  an  information 
against  the  defendant,  they  refused  even  a  rule  to 
show  cause. 

Next,  as  the  rules  prescribed  to  those  who  apply 
to  the  Court  for  leave  to  file  criminal  informations. 
In  general  the  applicant  must  waive  his  right  of 
action  ;*and  this  is  an  advantage  which  the  defen- 
dant derives  from  this  mode  of  proceeding  ;  for,  if 
convicted  under  an  indictment,  the  prosecutor 
would  still  be  at  liberty  to  bring  his  action  to  re- 
cover damages.  Where,  however,  the  Court,  on 
hearing  the  whole  matter,  are  of  opinion  that  it  is  a 
proper  sunjectforan  action,  they  will  give  the  party 
leave  to  bring  it.f 

The  Court!  will  not  grant  an  information,  unless 

•  2  T.  R.  198.  t  Ibid.  t  Bac.  Ah.  tit.  libel,  492 

68 


63b 

the  application  be  made  recently  after  the  cause  of 
complaint  shall  have  arisen. 

The  application  must  be  accompanied  with  affi- 
davits, stating  the  circumstances  of  the  case  :  these 
ought  not  to  be  entitled,  and  if  they  are,  cannot  be 
read  :  those  produced,  on  showing  cause,  may*  or 
may  not  be  entitled;  but  all  affidavits,  after  the  rule  is 
made  absolute,  must  be  entitled. f 

On  a  motion  for  an  information  against  A.  an 
affidavit,  in  a  motion  against  B.,  cannot  be  read, 
since  the  person  who  made  it  would  not  be  liable 
to  an  indictment  for  perjury,  though  it  should  be 
false.!  But  in  the  case  of  the  King  v.  Joliffe,§  a 
criminal  information  having  been  granted  against 
the  defendant,  he,  before  the  trial  at  Nisi  Prius,  dis- 
tributed hand  bills  in  the  assize  town,  vindicating 
his  own  conduct,  and  reflecting  upon  the  prosecu- 
tor's. This  matter  being  disclosed  to  the  Judge 
at  Nisi  Prius,  was  held  a  sufficient  ground  to  put 
off  the  trial ;  and  that  affidavit  having  been  returned 
to  the  court  of  King's  Bench,  another  information 
was  granted  on  it  against  the  defendant ;  the  affida- 
vit taken  at  Nisi  Prius  being  considered  as  taken 
under  the  authority  of  the  Court  above.  The  affi- 
davit should  set  forth  the  libel,  its  application,  and 
the  fact  of  publication  by  the  person  against  whom 
the  information  is  prayed. 

And  where  the  application  of  the  libellous  matter 
is  indifferent,  the  Court  has  refused  to  grant  the  in- 
formation, saying,  that  they  required  a  seeming  and 

*  1  StP.  704.    Andr.  313-  t  6  T.  R.  60.  t  11  Mod-  141. 

§  4  T.  R.  285. 


539 

apparent  application  to  be  made.*  A.  stated  in 
his  affidavit,  that  B.  had  brought  him  a  challenge 
from  C,  and  that  B.  had  refused  to  make  affidavit 
that  C.  had  sent  it ;  but  the  Court  held  this  evi- 
dence insufficient  to  grant  a  rule  nisi  for  a  criminal 
information  again stf  C 

It  has  frequently  £  been  decided,  that  it  is  neces- 
sary for  the  party  praying  an  information  to  pro- 
duce an  exculpatory  affidavit,  denying  the  truth  of 
the  charge,  siuce  though  the  truth  be  no  ground  of 
justification  on  indictment  for  a  libel,  yet  it  is  a 
sufficient  reason  why  the  Court  should  not  inter- 
fere in  an  extraordinary  way.  But  though  the 
Court,  in  general,  require  that  the  affidavit  shall 
directly§  and  pointedly  aver  the  prosecutor's  inno- 
cence of  the  charge,  the  rule  admits  of  some  ex- 
ceptions :  as  where  the  party  charged  is  abroad,  and 
then  the  person  making  the  application  in  his  be- 
half is  expected  to  go  as  far  in  his  affidavit  as  the 
nature  of  the  case  admits  of,  by  swearing  to  letters 
or  other  intelligence  within  his  reach.  || 

So,  where  the  charge  is  general,  f  no  exculpa- 
tory affidavit  is  required,  since  it  would  be  absurd 
to  require  a  man  to  swear  that  he  was  not  a 
traitor  or  a  thief :  neither  is  it  necessary  where  the 
party  is  accused  of  having  used  criminal  language 
in  parliament,  since  by  the  express  provision  of  the 

*  Fitzgibb.  57.  pi.  7-    D.  L.  L.  97.    Bac.  Ab.  tit.  Lib.  493. 
t  R.  v.  Willet,  6  T.  R.  294. 

%  Str.  498.  Andr.  229.  3  Bac-  Ab.  tit.  Lib-  492.  Barnard  K.  B.  13; 
Doug)  284. 

§  R.  v.  Miles,  Doug.  283.  II  R  v.  Bate.  Doug.  387,  If  Ibid 


540 

Bill  of  Rights,  what  passes  there  cannot  be  queb 
tioned  elsewhere.* 

Where  a  libel  stated  that  the  Duke  of  Athol  was 
held  in  such  general  abhorrence  in  the  Isle  of  Man, 
that  if  he  should  obtain  an  act,  then  depending  in 
Parliament,  it  would  occasionf  a  revolt,  the  Court 
held,  that  no  affidavit  from  the  Duke  was  neces- 
sary. 

After  the  rule"  to  show  cause  has  been  granted 
upon  the  prosecutor's  affidavits,  it  seems  that  affi- 
davits in  confirmation  may  be  produced  ;  but  that 
a  supplementary  affidavit,  if  introductory  of  new 
matter,  is  not  admissible:  but  if  the  new  affidavit 
be  partly  confirmatory  and  partly  consist  of  new 
matter,  the  Court  will  not  wholly  reject  it,  but  dis- 
tinguish between^  what  is  new  and  what  is  confirm- 
atory. Though  the  affidavits  of  the  relator  should 
be  contradicted  by  those  of  the  defendant,  in  some 
circumstances,  the  Court  will  nevertheless  grant  the 
information,  if  strong  probable  ground  be  laid.§ 

The  defendant|!  showed  for  cause  against  a  rule 
for  an  information,  that  the  charge  of  perjury  on 
which  the  motion  was  founded  was  true  ;  but  Sir 
J.  Pratt,  C.  J.  said,  "In  all  cases,  informations  for 
libels  go,  unless  you  can  show  the  court  some  pro- 
bable cause  for  them  to  believe  you  did  not  publish 
it.  Now,  if  you  had  denied  it,  it  would  have  signi- 
fied nothing ;  for  then,  affidavit  stands  against  affi- 
davit ;  therefore,  the  information  shall  go,  that  the 
fact  may  be  tried."     And  Fortescue,  J.  said,  "  It 

*  1  W.  and  M-  sess.  2-  6.  2.  art.  9.  t  Doug.  387-  in  the  note. 

I  The  King  v.  Kinaston,  2  Kel.  173.    Dig.  L.  L.  55.  §  Doug.  387 

!!  The  King  v.  Dormer.    Barnard,  K-  B-    13  Dig.  L.  h-  77. 


541 

would  be  a  strange  thing,  if  a  man  should  be  allow- 
ed to  justify  when  an  information  is  prayed  against 
him,  and  should  not  be  allowed  to  justify  in  the  in- 
formation itself   when  it  is  gone." 

The  prosecutor*  founded  his  application  upon  an 
affidavit  stating,  that  the  defendant  confessed  to  him 
the  publication  of  the  libel ;  on  the  other  hand  it  was 
shown,  that  the  defendant  never  made  any  such  con- 
fession, yet,  since  the  fact  of  publication  was  not 
denied,  the  information  was  granted. 

By  a  rule  E.  T.  5  G.  2 — Where  a  person  has  ob- 
tained a  rule  nisi  for  a  criminal  information,  and  upon 
showing  cause,  the  rule  is  discharged,  the  party  whof 
made  the  motion  shall  pay  the  costs. 

When  an  inlormation  is  filed  by  leave  of  the 
Court,  it  is  provided  by  St.  4  &  5  W.  c.  18.  that 
where  the  defendant  is  acquitted,  the  Court  is  au- 
thorized to  award  costs  to  the  defendant,  unless  the 
Judge  shall,  at  the  trial,  certify  that  there  was  reason- 
able cause.  But  it  has  been  held  compulsory  on  the 
Court  to  grant  costs  to  the  defendant  in  case  of  his 
acquittal,  and  no  certificate's  having  been  granted. 
The  certificate  must  be  granted  at  the  trial,  and  it  is 
afterward  too  late  to  inquire  whether  there  was  pro- 
bable cause  for  the  prosecution 4 

The  process  which  has  been  issued  in  case  of  libel 
has  been  either  against  the  person  oi  the  offender 
or  his  papers. 

1.  Against  the  person. 

*  R.  v.  Sharpe,  Andr.  384. 

But  this  has  been  held  discretionary.    2  Rol.  61.  pi-  8.     Dig-  L.  L.  07 
+  R.  v.  Woodfall,  2  Str-  1131.    Dig.  L.  L-  98- 


54g 

The  defendant,*  Derby,  having  been  committed 
upon  the  warrant  of  a  Secretary  of  State,  for  pub- 
lishing a  seditious  libel  called  the  Observator,  No. 
74,  was  brought  before  Chief  Justice  Parker,  by 
habeas  corpus,  and  by  him  discharged  upon  entering 
into  a  recognizance  to  appear  on  the  first  day  of  term. 
Upon  that  day  the  defendant  took  several  exceptions 
to  the  commitment,  and  moved  to  be  discharged,  in- 
sisting, principally,  that  the  commitment  previous  to 
indictment,  presentment,  and  conviction  for  the  of- 
fence imputed  to  him,  was  illegal  and  contrary  to 
St.  25.  E.  3.  c.  4 ;  but  the  Court  held  that  he  was 
not  entitled  to  his  discharge. 

John  Wilkesf  was  committed  upon  a  Secretary 
of  State's  warrant  for  writing  a  seditious  libel,  enti- 
tled "  The  North  Briton,"  No.  45.  He  was  after- 
ward brought  up  by  habeas  corpus  into  the  Court 
of  Common  Pleas,  and  beingj  privileged  as  a  mem- 
ber of  the  House  of  Commons,  was  discharged 
without  bail. 

In  the  above  case§  the  Court  considered  the  war- 
rant of  a  Secretary  of  State  to  be  of  the  same  force 
with  that  of  a  Justice  of  the  Peace,  and  that  neither 
a  Secretary  nor  Justice  ought  to  issue  a  warrant 
upon  his  own  private  knowledge ;  but  that  it  was 
unnecessary  to  state   upon  the  face  of  the  warrant 

*  R-  v-  Derby  Fortescue,  140.    Dig-  L.  L.  31.  f  2  Wilson,  159; 

J  But,  by  the  resolutions  of  both  Houses  of  Parliament  it  has  been  decided, 
that  privilege  does  not  lie  in  the  case  of  a  seditious  libel.  See  Dig.  L.  L.  54. 
And  the  House  of  Commons  has  committed  one  of  its  members  for  publishing 
reflections  upon  that  assembly.  Since  the  privilege  of  members  of  Parliament 
from  ar»est  is  not  materially  connected  with  the  law  of  libel,  the  reader  is  re- 
ferred, on  that  subject,  to  the  arguments  used  by  the  counsel  for  the  sever 
Bishops,  St.  Tr.  4  J.  2.  and  the  case  of  the  Kins  v.  Wilkes,  D.  L.  L.  43 
•  Spp.  Dig.  L.  I    51. 


d4S 

the  evidence  upon  which  it  was  granted,  or  even  to 
state  in  the  warrant  that  it  was  granted  upon  any 
charge  made.  And  in  the  same  case  it  was  held, 
that  the  words  contained  in  the  warrant  for  being 
the  author  and  publisher  of  a  "most  infamous  and 
seditious  libel,  entitled  "  The  North  Briton,"  was  a 
sufficient  description  of  the  offence,  since  it  was 
known  specifically  by  that  name. 

In  Leach's  case*  the  warrant  from  the  Secretary 
of  State  was  couched  in  the  following  terms  : 
"  These  are,  in  his  Majesty's  name,  to  authorize 
and  require  you  (the  messengers)  taking  a  constable 
to  your  assistance,  to  make  a  strict  and  diligent 
search  for  the  authors,  printers,  and  publishers  of  a 
seditious  and  treasonable  paper,  entitled  The  North 
Britain,  No.  45,  and  them,  or  any  of  them,  having 
found,  to  apprehend  and  seize,  together  with  their 
papers,  and  bring  in  safe  custody  before  me,  to  be 
examined  concerning  the  premises,  and  further 
dealt  with  according  to  law."  The  messengers, 
under  this  warrant,  seized  Mr.  Leach  and  imprison- 
ed him  for  some  time  ;  but  on  its  being  found  that 
he  was  neither  author,  printer,  nor  publisher,  he  was 
discharged  by  the  Earl  of Egremont's  order,  without 
even  having  appeared  before  him.  After  a  verdict 
for  the  plaintiff  the  defendants  carried  the  matter, 
by  a  bill  of  exceptions,  to  the  court  of  King's  Bench, 
when  the  single  point  decided  was,  that  the  defend- 
ants could  not  justify,  inasmuch  as  they  had  not  acted 
in  obedience  to  the  warrant.f 

*  1 1  St-  Tr.  307. 

t  By  a  resolution  o(  the  House  of  Commons  it  was  declared ,  that  general 
-warrants  in  the  case  of  libel  are  illegal.     .Tourn.  Comm.  22  Ap.  176fi.    And  snch 


544 

It  is  enacted  by  43  G.  3.  c.  58.  s.  1.-—"  That  when- 
ever any  person  is  charged  with  any  offence  for 
which  he  may  be  prosecuted  by  indictment  or  in- 
formation in  the  King's  Bench  (not  being  treason  or 
felony,)  and  the  same  shall  be  made  to  appear  to 
any  Judge  of  the  same  by  affidavit  or  by  certificate 
of  the  indictment,  or  information  being  filed  against 
such  person  in  the  said  court  for  such  offence,  such 
Judge  may  issue  his  warrant  under  his  hand  and 
seal,  and  thereby  cause  such  person  to  be  appre- 
hended and  brought  before  him  or  some  other  Judge 
of  the  same  court,  or  before  some  one  Justice  of  the 
Peace,  in  order  to  his  being  bound,  with  two  sure- 
ties, as  the  said  warrant  shall  express,  with  condi- 
tion to  appear  in  the  said  court  at  the  time  mention- 
ed in  the  said  warrant,  and  to  answer  all  and  singular 
indictments  or  informations  for  any  such  offence ; 
and  if  he  shall  neglect  or  refuse  to  become  so  bound, 
such  Judge  or  Justice  may  respectively  commit  him 
to  the  common  jail  of  the  county,  city,  or  place, 
where  the  offence  shall  have  been  committed,  or 
where  he  shall  have  been  apprehended,  there  to  re- 
main until  he  shall  become  bound  as  afosesaid,  or 
be  discharged  by  order  of  the  said  court,  in  term 
time,  or  by  one  of  the  Judges  of  the  said  court,  in 
vacation ;  and  the  recognizance  to  be  thereupon 
taken  shall  be  returned  and  filed  in  the  said  court, 
and  shall  continue  in  force  until  such  person  shall 
have  been  acquitted  of  such  offence,  or  in  case  of 
conviction,  shall   have   received  judgment  for  the 


were,  by  a  subsequent  resolution,  declared  to  be  illegal  in  all  cases.     lb.  5}5 
'•n.  1766, 


545 

same,  unless  sooner  declared  by  the  said  court  to 
be  discharged."  And  the  same  act  further  pro- 
vides, "  That  in  case  any  defendant  be  committed, 
either  by  virtue  of  such  warrant,  or  by  virtue  of  any 
writ  of  capias  ad  respondendum,  for  want  of  bail, 
a  copy  of  the  indictment  or  information  shall  be  de- 
livered to  him  or  to  his  jailer,  with  notice  that  un- 
less he  shall  within  eight  days  enter  an  appearance, 
plea,  or  demurrer,  to  such  indictment  or  informa- 
tion, an  appearance  and  the  plea  of  not  guilty  will 
be  entered  in  his  name  ;  and  that  if  such  defendant 
shall  neglect  for  eight  days  to  enter  an  appearance, 
and  to  plead  or  demur,  the  prosecutor  may,  on  affi- 
davit of  the  service  of  the  copy  and  notice,  enter  an 
appearance  and  the  plea  of  not  guilty,  and  proceed 
in  the  usual  course :  and  that,  upon  acquittal,  the 
Judge  before  whom  the  trial  is  had  (though  not  a 
Judge  of  the  King's  Bench)  may  order  such  de- 
fendant to  be  discharged  out  of  custody  as  to  his 
aforesaid  commitment." 

With  respect  to  the  seizure  of  papers,  it  is  said 
to  have  been  resolved  by  all  the  Judges,  that  where 
persons  write,  print,  or  sell  any  pamphlet,  scanda- 
lizing the  public  or  private  persons,  such  books  may 
be  seized,  and  the  person  punished  by  law.* 

The  practice  of  issuing  a  general  warrant  to 
seize  the  papers  of  a  suspected  person,  appears 
to  have  been  frequently  resorted  to,  in  former 
times,  with  great  abuse,  of  which  the  case  of  Lord 
Cokehimself  furnishes  an  instance  ;  whose  papers 
were  seized  and  carried  to  the   Secretary's  office, 

*  4  Read.  St.  Law.  15# 

69 


546 

with  some  valuable  securities,  which  were  never 
returned  to  him.*  Insignificant  however  is  a  loss  of 
such  a  nature  when  compared  with  the  more  serious 
evils  incident  to  such  a  procedure,  the  grievous  in- 
vasion of  domestic  peace  and  security,  and  the  faculty 
with  which  a  person  might  be  made  responsible  for 
the  contents  of  writings  never  in  his  possession,  or 
deprived  of  those  necessary  for  the  purpose  of  his 
defence. 

A  warrantf  was  issued  in  the  name  of  the  Duke 
of  Newcastle,  one  of  the  Secretaries  of  State,  di- 
rected to  two  of  the  King's  messengers,  requiring 
them,  taking  a  constable,  to  make  a  diligent  search 
in  the  house  of  Dr.  Earbury,  the  author  of  a  trea- 
sonable paper,  entitled  "  The  Royal  Oak  Journal," 
for  all  papers  of  whatsoever  kind  in  his  custody,  and 
to  bring  the  said  papers  before  him;  the  messengers, 
without  taking  a  constable  to  their  assistance,  en- 
tered the  defendant's  house,  seized  his  papers  and 
brought  them  before  Mr.  De  La  Faye,  who  was 
the  Duke's  Secretary  and  a  Justice  of  the  Peace. 

The  defendant  afterwards  applied  to  the  Court  of 
King's  Bench  to  have  his  papers  restored  to  him, 
insisting  that  a  Secretary  of  State  could  not  legally 
grant  a  warrant  to  seize  a  person's  papers.  Lord 
C.  J.  Hardwicke  said,  that  as  to  seizing  the 
defendant's  papers,  he  would  not  give  any  opinion 
whether  it  was  legal  or  not,  that  the  Court  of  King's 
Bench  could  not  grant  a  rule  upon  the  messenger 
who  did  seize  them  to  restore  them,  and  therefore 
that  the  question  was  not  properly  before  the  Court 
for  their  determination. 

*  Dig.  L.  I..  33.  t  2  Barnard.  K.  B.  346.    Dig.  L.  L.  33. 


D47 

But  in  the  great  case*  of  the  seizure  ot  papers,  it 
was  decided,  that  a  Secretary's  warrant  to  search  for 
papers  was  illegal :  and  Ld.  Camden,  C.  J.  ob- 
served, "If  this  point  should  be  determined  in 
favour  of  the  jurisdiction,  the  secret  cabinets  and 
bureaus  of  every  subject  in  the  kingdom  will  be 
thrown  open  to  the  search  and  inspection  of  a  mes- 
senger, whenever  the  Secretary  of  State  shall  think 
fit  to  charge,  or  even  suspect  a  person  to  be  the  au- 
thor, printer,  or  publisher  of  a  seditious  libel.  This 
power  so  assumed  by  a  Secretary  of  State,  is  an  ex- 
ecution upon  all  the  parties'  papers  in  the  first  in- 
stance ;  his  house  is  rifled — his  most  valuable  secrets 
wrested  out  of  his  possession,  before  the  paper,  for 
which  he  is  charged,  be  found  criminal  by  any  com- 
petent jurisdiction,  and  before  he  is  convicted  either 
of  writing,  publishing,  or  being  concerned  in  the 
paper.  This  power  of  the  Secretary  is  not  sup- 
ported by  one  single  citation  from  any  law  book 
extant — it  is  claimed  by  no  Magistrate  in  the  king- 
dom but  himself.  Papers  are  the  owner's  goods 
and  chattels, — they  are  his  dearest  property,  and 
are  so  far  from  enduring  a  seizure,  that  they  will 
hardly  bear  an  inspection;  and  though  the  eye 
cannot,  by  the  law  of  England,  be  guilty  of  a  tres- 
pass, yet  where  private  papers  are  removed  and 
carried  away,  the  secret  nature  of  the  goods  will 
be  an  aggravation  of  the  trespass,  and  demand  more 
considerable  damages  in  that  respect.  Where  is 
the  written  law  that  gives  any  Magistrate  such  a 
power?  I  can  safely  say,  there  is  none  ;  and  there- 

*  Entickv.  Carrington  and  others,  11  St.  Tr.  317. 


548 

fore  it  is  too  much  for  us,  without  such  authority, 
to  pronounce  a  practice  legal,  which  would.be  sub- 
versive of  all  the  comforts  of  society." 

"  There  is  no  authority  to  show  that  libels  might 
be  seized,  except  the  opinion  of  the  twelve  Judges, 
at  the  close  of  the  reign  of  C.  II.,  who  gave  it  as 
their  opinion,  that  no  one  could  legally  expose  to 
the  public  any  thing  that  concerned  the  affairs  of 
the  public,  without  license  from  the  King.  This 
was  quoted  by  C.  J.  Scroggs  on  the  trial  of  Harris 
for  a  libel,  who  extended  the  doctrine  to  the  sei- 
zure of  all  books,  pamphlets,  and  writings,  on  mat- 
ters of  public  concern." 

And  again,  "It  is  urged  as  an  argument  of  uti- 
lity, that  such  a  search  is  a  means  of  detecting  of- 
fenders by  discovering  evidence.  I  wish  some  case 
had  been  shown  where  the  law  forceth  evidence 
out  of  the  owner's  custody  by  process." 

"In  the  criminal  law  such  a  proceeding  was  never 
heard  of;  and  yet  there  are  some  crimes,  such,  for 
instance,  as  murder,  rape,  robbery,  and  housebreak- 
ing, to  say  nothing  of  forgery  and  perjury,  that  are 
more  atrocious  than  libelling ;  but  our  law  has 
provided  no  paper  search  upon  those  occasions  to 
help  forward  the  conviction.  Whether  this  pro- 
ceeded from  the  gentleness  of  the  law,  or  from  the 
consideration  that  such  a  power  would  be  more  per- 
nicious to  the  innocent  than  useful  to  the  public,  I 
will  not  say." 

"  Observe  the  wisdom  as  well  as  the  mercy  of  the 
law.  The  strongest  evidence  before  trial,  being  only 
ex  parte,  is  but  suspicion, — it  is  not  proof:  weaker 
evidence  is   a  ground  of  suspicion,   though  in  a 


549 

lower  degree;  and  if  suspicion  at  large  should  be 
a  ground  of  search,  especially  in  case  of  libels, 
whose  house  would  be  safe  ?  Upon  the  whole,  we 
are  of  opinion,  that  the  warrant  to  seize  and  carry 
away  the  parties'  papers  in  case  of  a  seditious  libel, 
is  illegal  and  void." 

And  the  House  of  Commons*  afterwards  came  to 
a  resolution,  declaring  the  seizure  of  papers,  in  the 
case  of  libel,  to  be  illegal. 

Since  a  criminal  proceeding  is  in  its  nature  local, 
the  offence  must  be  laid  and  proved  to  have  been 
committed  in  the  county  within  which  the  billf 
is  preferred.  And  the  indictment  may  be  tried 
at  the  quarter  sessions,  before  the  Justices  of  the 
Peace,  as  well  as  before  the  Justices  of  Oyer  and 
Terminer.^ 

With  respect  to  the  technical  mode  of  framing  an 
information  or  indictment,  little  remains  to  be 
added  to  the  observations  already  made  on  the  sub- 
ject of  the§  declaration.  It  has  been  decided,  that 
it  is  unnecessary  to  aver  the  offence  to  have  been 
committed  with  "  force  and  arms,"  since ||  the  pub- 
lishing of  a  libel  is  not  a  breach  of  the  peace,  but 
only  tends  to  the  breaking  of  it. 

Neither  is  it  necessary  to  allege  that  the  matter 
published  is  false,  since  the  averment  need^I  not  be 
proved ;  but  the  word  malitiose,**  or  at  least  some 
equivalent  epithet,  has  been  held  essential. 

An  indictmentf  t  stating  that  the  defendant  "scripsit 

*  Jour.  Comm.  25th  April,  1766. 

t  4  Read.  St.  Law.  155.     8  Mod.  328.     Dig.  L.  L.  97. 

I  2  Haw.  c.  8.  s.  88.  R.  v.  Summers.     1  Lev.  139. 

§  Vide  supra,  ch.  19,  20.     [See  post,  note  45.]        II  7  T.  R.  4.        f  lb. 

**  Sty.  392.  per  Roll.  C.  J.    1  Vin.  Ab-  533.  pi.  3.         tt  8  Mod.  328. 


550 

fecit,  et   publicavit,  seu   scribi  fecit,   et  publicari 
causavit,"  has  been  held  too  uncertain. 

The  most  usual  plea  in  an  indictment  or  informa- 
tion, is  the  general  issue  of  not  guilty,  by  which  the 
defendant  puts  himself  generally  upon  the  country 
for  his  deliverance,  and  is  entitled  to  take  advantage 
of  every  defect  in  the  evidence  for  the  prosecution ; 
or  to  rebut  that  evidence  by  counter  proof,  tending 
to  convince  the  jury,  either  that  the  act  imputed  was 
not  committed  ;  or  allowing  the  publication,  to  show 
from  the  context,*  or  other  circumstances,  either 
that  the  matter  published  was  not  criminal  in  its  na- 
ture ;  or  if  criminal,  that  it  was  published  inadver- 
tently,! and  without  any  guilty  knowledge.! 

*  R.  v.  Lambert  and  Perry,  2  Camp.  N.  P.  398- 

t  R.  v.  Lord  Abingdon,  1  Esp.  226. 

X  In  the  case  of  the  King  v.  Holt,  5  T.  R.  444.  Lord  Kenyon,  C.  J.  ob- 
served, if  the  defendant  could  have  shown  that  he  had  published  the  paper  in 
question  without  knowing  its  contents,  as  that  he  could  not  read,  and  was  not 
informed  of  its  tendency  till  afterwards,  that  argument  might  have  been  pressed 
upon  the  Jury. 


5*1 


CHAPTER  XL. 


Of  the  Trial  and  its  Incidents. 

The  offence  of  the  defendant,  as  stated  upon  the 
record,  is  compounded  of  four  ingredients, 

1.  The  naked  overt  act,  by  which  he  was  instru- 
mental to  the  existence  or  publication  of  the  libel. 

2.  The  sense  in  which  he  published  the  libel,  as 
pointed  out  by  the  proper  averments. 

3.  The  tendency  of  the  matter  published,  when 
thus  understood,  to  create  public  mischief. 

4    The  criminal  intention  with  which  he  acted, 
including  a  guilty  knowledge  of  the  contents  of  the 

alleged  libel. 

The  two  iirst  of  these  are  mere  matters  ot  tact, 
which  have  ever  been  considered  as  appertaining  to 
the  decision  of  a  jury,  conformably  with  the  maxim, 
"  Ad  queestionem  facti  respondent  juratores,  ad 
qusestionem  juris  respondent  judices." 

But  with  respect  to  the  tendency  of  the  publica- 
tion and  the  intention  of  the  publisher,  a  remarkable 
doubt  has  prevailed,  whether  their  consideration 
ought  not  to  be  abstracted  from  a  jury  and  reserved 


552 

exclusively  for  the  attention    and  decision  of  the 
Court. 

Before  the  history  of  the  question  is  briefly  sketch- 
ed, it  may  be  proper  to  suggest  by  what  peculiarity 
in  the  subject  matter  it  was  raised. 

The  essence  of  a  libel  consists  in  its  tendency  to 
produce  mischief,  without  regard  to  any  mischief 
actually  produced  :  when,  therefore,  the  act  of  pub- 
lication, and  sense  and  meaning  of  a  libel  have  been 
once  established,  its  illegality,  that  is,  its  tendency, 
appears  on  the  record,  and  requires  no  further  aid 
from  evidence.     But  the  intrinsic  illegality  is  not  a 
mere  question  of  law,  since  it  consists  in  tendency, 
which  cannot   depend  wholly  upon   authority  and 
precedent,  but  partly,  at  least,  upon  extrinsic  cir- 
cumstances, the  temper  of  the  public  mind,  and  the 
passing  events  of  the  day.     Nor  is  the  intrinsic  ille- 
gality a  mere  question  of  fact ;  if,  indeed,  the  cri- 
minality were  required  to  be  ascertained  by  some 
visible  effect,  as  the  production  of  a  riot,  no  doubt 
could  exist,  and  a  jury  must  determine  the  question 
of  libel  or  no  libel,  by  inquiring  into  the  existence 
of  the  visible  test ;  but  resting  in  mere  tendency,  it 
cannot  be  decided  by  the  mere  aid  of  that  kind  of 
evidence  upon  their  credence  to  which  a  jury  in  ge- 
neral pronounce  their  verdict.    The  question,  there- 
fore, nakedly  considered,  and  without  reference  to 
authorities,  is  ambiguous  in  its  nature,  depending  for 
its  solution  upon  a  sound  judgment  and  discretion 
applied  to  the  alleged  libel  and  the  temper  anil  cir- 
cumstances of  society,  rather  than  upon  a  profound 
knowledge  of  law  on  the  one  hand,  or  the  assistance 
of  evidence  on  the  other. 


553 

After  the  abolition  of  the  Star-chamber,  which  in 
case  of  libel  exercised  an  unbounded  control  over 
both  law  and  fact,  the  cognizance  of  such  offences 
reverted  to  the  court  of  King's  Bench,  to  be  ex- 
ercised in  the  constitutional  mode  by  the  interven- 
tion of  a  jury ;  and  till  some  time  after  this  period, 
no  doubt  seems  to  have  been  entertained  of  the 
right  of  a  jury  to  give  a  general  verdict  in  the  case 
of  Jibel,  as  well  as  in  any  other  criminal  proceeding. 

In  the  year  1670,*  two  Quakers,  Penn  and  Mead, 
indicted  for  seditiously  preaching  to  a  multitude 
tumultuously  assembled  in  Gracechurch-street, 
were  tried  before  the  Recorder  of  London,  who 
told  the  Jury,  that  they  had  nothing  to  do  but  to 
find  whether  the  defendants  had  preached  or  not ; 
for  that,  whether  the  matter  or  the  intention  of  their 
preaching  was  seditious,  wgre  questions  of  law 
but  not  of  fact,  which  they  were  to  keep  to  at  their 
peril.  The  Jury  first  found  Penn  guilty  of  speak- 
ing to  the  people  in  Gracechurch-street.  This  ver- 
dict having  been  refused  by  the  Recorder,  the  Jury 
again  retired,  and  afterward  brought  in  a  general 
verdict  of  acquittal ;  this  the  Court,  considered  as  a 
contempt,  and  set  a  fine  of  forty  marks  on  each  of 
them,  and  directed  them  to  be  confined  till  the  fine 
should  be  paid.  Edward  Bushel,  one  of  the  ju- 
rors, refused  to  pay  the  fine,  and  being  imprisoned 
in  consequence  of  his  refusal,  sued  out  his  writ  of 
habeas  corpus,  which  was  returned,  together  with 
the  cause  of  his  commitment,  "  his  acquital  of  Penn 
and  Mead  against  the  law  of  England,  against  the 

*  Bushel's  case,  Vaughau.  Rep.  135 

70 


554 

evidence,  and  against  the  direction  of  the  Court  on 
matter  of  law." 

Lord  Chief  Justice  Vaughan,  on  the  latter  part 
of  the  return,  observed,  "  The  words,  that  the  Jury 
did  acquit,  against  the  direction  of  the  Court  in 
matter  of  law,  literally  taken  and  de  plcmo,  are  in- 
significant and  unintelligible ;  for  no  issue  can  be 
joined  of  matter  in  law,  no  Jury  can  be  charged 
with  matter  in  law  barely,  no  evidence  ever  was  or 
can  be  given  to  a  jury  of  what  is  law  or  not,  nor 
no  such  oath  can  be  given  to  or  taken  by  a  Jury  to 
try  matter  in  law,  nor  no  attaint  can  lie  for  such  a 
false  oath. 

"  Therefore  we  must  take  off  this  veil  and  colour 
of  words,  which  make  a  show  of  being  something, 
and  in  truth  are  nothing. 

"If  the  meaning  of  these  words,  finding  against 
the  direction  of  the  Court  in  matter  of  law,  be,  that 
the  Judge  having  heard  the  evidence  given  in  Court, 
for  he  knows  no  other,  shall  tell  the  Jury  upon  this 
evidence,  the  law  is  for  the  plaintiff  or  for  the  de- 
fendant, and  you  are  under  the  pain  of  fine  and  im- 
prisonment to  find  the  contrary,  then  the  Jury 
ought  of  duty  so  to  do,  every  man  sees  that  the 
Jury  is  but  a  troublesome  delay,  great  charge,  and 
of  no  use  in  determining  right  and  wrong ;  and, 
therefore,  the  trials  by  them  may  better  be  abo- 
lished than  continued,  which  were  a  strange  new 
found  conclusion,  after  a  trial  so  celebrated  for 
many  hundreds  of  years. 

"  For  if  the  Judge,  from  the  evidence,  shall  by  his 


555 

own  judgment  first  resolve  upon  any  trial  what  the 
fact  is,  so  knowing  the  fact  shall  then  resolve  what 
the  law  is,  and  order*  the  Jury  severally  to  find  ac- 
cordingly, what  either  necessary  or  convenient  use 
can  be  fancied  of  Juries,  or  to  continue  trials  by 
them  at  all." 

Upon  the  trial  of  Nathaniel  Thomsonf  and 
others  for  composing  and  publishing  libellous  re- 
marks upon  the  administration  of  Justice,  the  Chief 
Justice]:  concluded  his  observations  to  the  Jury,  by 
saying — "  Gentlemen,  I  do  leave  it  to  you,  whe- 
ther upon  this  evidence  you  do  not  believe  them  all 
to  be  guilty  of  this  design  of  traducing  the  justice  of 
the  nation." 

In  the  case  of  the  Seven§  Bishops,  who  were  in- 
dicted for  having  offered  a  petition  to  the  King, 
which  was  alleged  to  be  a  libel,  the  Judges  who 
seemed  no  ways  inclined  to  favour  the  defendants, 
would  not  accede  to  the  doctrine  of  the  Counsel 
for  the  Crown,  who  contended  that  the  malice  and 
sedition,  wherewith  the  prelates  were  charged, 
arose  by  construction  of  law  out  of  the  fact,  and 
that  the  Jury  had  nothing  to  concern  themselves 
with  but  the  fact  of  the  publication  in  Middlesex. 

The  defendants  had  given  in  evidence  several 
parliamentary  documents,  to  prove  that  the  dispens- 
ing power  claimed  by  the  King,  and  against  the  ex- 
ercise of  which  the  petition  of  the  Bishops  was  di- 
rected,  was   illegal.     The  then  Attorney-general, 

*  Bushell's  case,  Vaughan.  Rep.  135. 

t  3  St.  Tr.  37.  The  object  of  the  publication  waa  to  prove  that  Green, 
Berry,  and  Hill,  had  been  improperly  convicted  of  the  murder  of  Sir  F.dmond- 
bury  Godfrey. 

•  Sir  Francis  Pemberton-  §  St.  Tr.  4  J.  2. 


556 

alter  some  slight  remarks  upon  this  evidence,  was 
about  to  conclude  with  a  somewhat  flippant  expres- 
sion of  regret,  that  the  defendants'  counsel  had 
spent  their  time  to  so  little  purpose,  when  the 
Chief  Justice  observed,  "Yes,  Mr.  Attorney,  I'll 
tell  you  what  they  offer,  which  it  will  lie  on  you 
to  give  an  answer  to," — they  would  have  you  show 
how  this  has  disturbed  the  Government  or  dimin- 
ished the  King's  authority."  The  Attorney-ge- 
neral then  contended,  that  malice  or  sedition  arise 
by  construction  of  law  out  of  the  fact ;  and  that  if 
the  thing  be  illegal,  the  law  says  it  is  seditious,  and 
a  man  shall  not  come  and  say  he  meant  no  harm 
by  it. 

And  afterwards  whilst  the  Solicitor-general  was 
speaking,  the  Chief  Justice  interrupted  him  by  re- 
questing him  to  come  to  the  business  before  them, 
and  to  show  that  the  alleged  libel  was  in  diminution 
of  the  King's  prerogative,  or  that  he  ever  had  such 
a  prerogative. 

Upon  summing  up  to  the  Jury,  the  Chief  Jus- 
tice, after  addressing  the  Jury  upon  the  point  of 
publication,  proceeded,  "  If  you  believe  this  was  the 
petition  they  presented  to  the  king,  then  we  must 
inquire  whether  this  be  a  libel."  The  Chief  Jus- 
tice then  proceeded  to  intimate  his  opinion,  that 
the  publication  in  question  was  a  libel,  but  as  it 
was  a  point  of  law,  invited  his  brethren  to  give  their 
opinions. 

This  the  other  Judges  proceeded  to  do. 

Justice  Hollo  way  concluded  by  saying,  "  I  can- 
not think  it  is  a  libel ;  it  is  left  to  you,  Gentlemen, 
but  that  is  my  opinion." 


DO/ 


Powell  J.  also  delivered  his  opinion  to  the  same 
effect,  leaving  the  issue  to  the  conscience  of  the 
Jury. 

And  afterward  when  the  Jury  retired  to  deter- 
mine upon  their  verdict,  they  were  permitted  to 
take  with  them  the  alleged  libel. 

Upon  the  trial  of  John  Tutchin,*  upon  an  infor- 
mation for  publishing  a  libel  entitled  the  Observator, 
Lord  Holt  C.  J.,  after  reading  the  printed  papers 
alleged  to  be  libels,  told  the  Jury,  "Now  you  are 
to  consider,  whether  these  words  I  have  read  to 
you  do  not  tend  to  beget  an  ill  opinion  of  the  admin- 
istration of  the  Government."  The  learned  Judge, 
it  is  true,  concluded  his  address,  as  was  afterward 
observed  by  Lord  Mansfield  C.  J.,  by  saying,  "  If 
you  are  satisfied  that  he  is  guilty  of  composing  and 
publishing  these  papers  in  London,  you  are  to  find 
him  guilty."  But  these  words  have  immediate  re- 
ference to  the  ground  of  defence  upon  which  Mr. 
Tutchin's  counsel  meant  to  rely  ;  namely,  that  the 
offence  had  not  been  proved  to  have  been  commit- 
ted in  London,  and  cannot  be  considered  as  used  for 
the  purpose  of  withdrawing  the  attention  of  the 
Jury  from  the  quality  of  the  publication,  upon  which 
they  had  just  before  received  instructions ;  and  in- 
deed to  suppose  it  had  so  meant  would  prove  too 
much,  since  if  so,  the  Jury  were  directed  not  to  find 
the  truth  of  the  innuendos. 

The  first  instance  which  appears  where  the  Court 
directed  the  Jury  to  find  the  defendant  guilty,  if  they 
were  satisfied  with  the  evidence  of  publication,  ap- 
pears to  be  that  of  the  King  v.  Clerkf  for  publishing 

*  4  St.  Tr.  659-  1  2  G.  2.  1729-     Barnard.  K-  B.  304. 


55S 

Mist's  Weekly  Journal.  It  appeared  upon  evidence, 
that  the  defendant  acted  merely  as  servant  to  a 
printer,  that  his  business  was  to  clap  down  the  press, 
and  there  was  little  or  no  proof  of  a  guilty  knowledge 
of  the  contents  of  the  paper,  or  of  his  being  con- 
cerned in  a  criminal  act.  It  was  objected  by  Ser- 
geant Hawkins,  that  the  charge  of  a  malicious  and 
traitorous  design  was  not  supported  by  the  evidence, 
from  which  it  appeared  that  the  defei  dant  acted  ig- 
norantly  and  in  obedience  to  his  master's  directions. 
But  it  was  answered,  that  since  the  defendant  was 
merely  charged  with  the  publishing  a  seditious  libel, 
the  malice  was  immaterial;  and  Lord  Raymond, 
Chief  J.  informed  the  Jury,  that  the«fact  of  printing 
and  publishing  only  was  in  issue. 

And  the  same  learned  Judge,  upon  the  trial  of 
an  information,*  directed  the  Jury,  "  that  there 
were  three  points  for  consideration  :  the  fact  of  pub- 
lication, the  meaning,  (these  two  for  the  Jury)  the 
question  of  law  or  criminality  for  the  Court  upon 
the  record." 

Lord  Chief  Justice  Lee  gave  the  same  direction 
in  the  King  v.  Owen,f  and  Lord  Chief  Justice 
Ryder  followed  his  example  in  the  case  of  the  King 
v.  Nutt4 

Lord  Mansfield,  soon  after  his  appointment  to 
the  high  office  of  Chief  Justice,  laid  down§  the 
same  doctrine  in  the  case  of  the  King  v.  Shebbeare  ; 
and  though  the  same  learned  Judge  repeated  the 
same  directions  in  a  number  of  similar  cases,  all 

*  9  St.  Tr.  255. 

t  10  St.  Tr.  App.  196.    2,  5  G.  2.  K.  B.  MSS.    Dig.  LL.  67. 
Per  Lord  Mansfield,  3  T.  R.  430  in  the  notes.  5  Ik 


•559 

disquisition  upon  the  province  of  the  Jury  on  these 
points  seems  to  have  slept,  Ml  the  verdict  given  in 
the  case  of  the  King  v.  Woodfall.*  That  was  the 
case  of  an  information  filed  by  the  Attorney-general 
for  publishing  a  seditious  libel  signed  Junius ;  the 
Jury  found  him  guilty  of  the  printing  and  publishing 

ONLY. 

Upon  motion  to  arrest  the  judgment,  it  was  in- 
sisted upon  for  the  defendant,  that  a  criminal  inten- 
tion is  the  essence  of  the  offence  ;  and  that  since 
they  had  not  found  malice,  it  must  be  taken  not  to 
have  existed,  since  a  verdict  could  not  be  supplied 
by  inference ;  but  that  at  all  events  the  verdict  was 
imperfect,  and  that  there  should  be  a  new  trial. 
For  the  Crown  it  was  argued,  that  the  law  would 
collect  the  intention  from  the  libel  itself,  thni  the 
printing  and  publishing  were  all  the  Jury  had  to  in- 
quire about,  and  that  the  intention  might  be  collect- 
ed from  the  libel  itself. 

Lord  Mansfield,  C.  J.  in  delivering  the  judgment 
of  the  Court,  observed,  "  there  may  be  cases  where 
the  fact  proved  as  a  publication  may  be  justified,  or 
excused  as  lawful  or  innocent ;  for  no  fact  which  is 
not  criminal,  in  case  the  paper  be  a  libe!,  can  amount 
to  a  publication,  of  which  the  defendant  ought  to 
be  found  guilty.  But  no  question  of  that  kind  arose 
in  this  case,  therefore  I  directed  the  Jury  to  consi- 
der whether  all  the  innueiidos,  and  all  the  applica- 
tions to  matters  and  persons,  made  by  the  informa- 
tion, were  in  their  judgments  the  true  meaning  of 
the  paper ;  if  they  thought  otherwise,  they  should 

*  5  Burr.  2661- 


560 

acquit  the  defendant,  but  if  they  agreed  with  the  in- 
formation, and  believed  the  evidence  as  to  the  pub- 
lication, they  should  find  him  guilty."  The  learned 
Judge  then  proceeded  to  observe,  that  "  if  proof  of 
the  express  intent  of  the  defendant  were  requisite, 
the  direction  was  wrong  ;  but  that,  whether  the  pa- 
per was  in  law  a  libel,  was  a  question  of  law  upon 
the  face  of  the  record  ;  and  that  the  epithets  in  the 
information  were  formal  inferences  of  law  from  the 
printing  and  publishing.  That  the  verdict  finds  only 
what  the  law  infers  from  the  fact ;  that  where  an 
act,  in  itself  indifferent,  if  done  with  a  particular  in- 
tent, becomes  criminal,  there  the  intent  must  be 
proved  and  found ;  but  where  the  act  is  in  itself  un- 
lawful, the  proof  of  justification  lies  upon  the  de- 
fendant, and  in  failure  thereof  the  law  implies  a 
criminal  intent." 

Having  thus  declared  his  opinion  upon  the  subject 
of  libel,  in  the  propriety  of  which  his  brethren  agreed 
with  him,  Lord  Mansfield  then  proceeded  to  deliver 
the  sense  of  the  Court  upon  the  verdict  before  them; 
the  substance  of  which  was,  that  as  a  doubt  had 
arisen  from  the  introduction  of  the  ambiguous  and 
unusual  word  only  into  the  verdict,  there  should  be 
a  venire  de  novo.* (I) 

*  Woodfall's  case.     5  Burr.  2661. 


(1)  Upon  an  indictment  for  writing  and  publishing  a  libel  on  the  characters  of 
■  I.  and  B.  and  also  upon  the  memory  of  C.  deceased,  the  jury  found  the  de- 
fendant "guilty  of  writing  and  publishing  a  bill  of  scandal  against  A-  and  B., 
but  not  guilty  as  to  any  C.  deceased."  Judgment  reversed,  because  the  de- 
fendant was  not  found  guilty  of  the  offence  charged  in  the  indictment.  Sliarff 
v.  The  Commonwealth,  2  Binn-  514- 


6'J1 

The  legality  of  the  doctrines  laid  down  by  Lord 
Vlansfield  in  Woodfall's  case,  appears  to  have  been 
expressly  decided  upon  by  the  Court  of  King's 
Bench,  for  the  first  time,  in  the  case  of  the  King 
against*  Wm.  Davies  Shipley,  Dean  of  St.  Asaph. 
The  defendant  was  tried  before  Mr.  J.  Buller,  atf 
Shrewsbury,  upon  an  indictment,  charging  him  with 
having  published  a  malicious,  seditious,  and  scan- 
dalous libel,  entitled,  "  The  Principles  of  Govern- 
ment, in  a  Dialogue  between  a  Gentleman  and  a 
Farmer.;"  with  intent  to  incite  the  King's  subjects  to 
attempt,  by  force  and  violence,  to  make  alterations 
in  the  government,  state,  and  constitution  of  the  king- 
dom. The  fact  of  publication  was  clearly  proved ;  and 
of  the  truth  of  the  innuendos,  there  was  no  doubt, 
since  they  merely  averred,  that  by  the  letter  G.,  was 
meant  gentleman  ;  by  F.,  farmer ; 'by  the  King,  the 
Kins  of  Great  Britain.  One  witness  for  the  de- 
fendant  stated,  that  upon  his  informing  him,  that 
some  gentlemen  were  of  opinion  the  publication 
might  do  harm,  the  defendant  answered,  he  should 
be  sorry  to  publish  any  thing  that  tended  to  sedition ; 
that  some  time  after,  he  said,  upon  reading  it  at  a 
public  meeting,  "  I  am  now  called  upon  to  show 
that  it  is  not  seditious,  but  I  read  it  with  a  rope 
about  my  neck ;"  and  that  upon  another  occasion:, 
when  he  had  read  it,  he  gave  his  opinion  that  it  ivas 
not  quite  so  bad. 

The  learned  Judge,  on   summing  up  the  Jury, 

*  3T.R-  428.  in  the  notes,  see  also  Ridgway's  speeches  of  the  Hon.  Thoi 
Erskine,  vol.  I. 
t  Aug.  6th,  1784. 
%  Ttidgwav's  speeches  of  the  Hon.  Thomas  Erskine,. 

71 


5t>2 

declared  thai  it  was  not  for  him  to  say  whether  the 
pamphlet  was  or  was  not  a  libel ;  and  concluded  his 
address  to  them  in  these  words  :  "If  you  are  satis- 
fied that  the  defendant  did  publish  this  pamphlet, 
and  are  satisfied  as  to  the  truth  of  the  innuendos, 
in  point  of  law,  you  ought  to  find  him  guilty ;  if 
you  think  they  are  not  true,  you  will  acquit  him." 
The  Jury  brought  in  their  verdict  "  guilty  of  pub- 
lishing only."  The  learned  Judge  then  informed 
them,  that  by  such  a  verdict  they  would  negative 
the  meaning  of  the  innuendos,  but  that  if  they  left 
out  the  word  only,  the  question  of  law  would 
be  open  upon  the  record,  and  that  the  defendant 
might  move  in  arrest  of  judgment.  Upon  this  di- 
rection, Mr.  Erskine  (the  defendant's  counsel)  saidr 
"  I  beg  to  ask  your  Lordship  this  question,  whe- 
ther, if  the  Jury  find  him  guilty  of  publishing,  leav- 
ing out  the  word  only,  and  if  the  judgment  be  not 
arrested  by  the  court  of  King's  Bench,  the  sedition 
will  not  stand  recorded?" 

Mr.  J.  Buller.  "No,  it  will  not;  unless  the 
pamphlet  be  a  libel  in  point  of  law."  The  Jury  then 
returned  their  verdict,  "  Guilty  of  publishing,  but 
whether  a  libel  or  not  we  do  not  find." 

Upon  a  motion  for  a  new  trial,  on  the  ground  of 
a  misdirection  by  Mr.  Justice  Buller,  the  Counsel 
for  the  defendant  urged  five  distinct  points — 

I.  That  in  every  criminal  case,  upon  a  plea  of 
not  guilty,  the  Jury  are  charged  generally  with  the 
defendant's  deliverance  from  that  crime,  and  not 
specially  from  any  single  fact.  Upon  this  topic  it 
was  urged,  that  the  rules  of  pleading  in  civil  cases 
were  framed  for  the  purpose  of  preserving:  the  ju- 


mdictioii  ot  the  Court  and  Jury  distinct,  by  li  sepa 
ration  of  the  law  from  the  fact ;  but  that  in  criminal 
cases,  no  such  boundary  was  ever  attempted  ; — that 
on  the  contrary,  it  had  been  the  custom,  from  the 
time  of  the  Norman  conquest,  for  the  defendant  to 
throw  himself  upon  his  country  for  deliverance, 
upon  the  general  issue  of  not  guilty,  and  to  receive 
from  the  verdict  of  the  Jury  a  complete,  general, 
and  conclusive  deliverance. 

In  support  of  this  doctrine,  the  opinions  of  Sir 
Wm.  Blackstone,  Sir  M.  Hale,  Sir  Mich.  Foster,* 
and  Lord  Raymond,  weref  referred  to,  and  thence 
assuming  that  the  jury  had  a  right  to  give  a  general 
verdict,  it  was  contended,  that  to  enable  them  to  do 
so,  it  was  the  duty  of  the  Judge  to  direct  them  upon 
the  law;  and  that  having  omitted  so  to  direct  them, 
and  having  informed  the  Jury,  that  neither  the  ille- 
gality of  the  paper,  nor  the  intention  of  the  defend- 
ant, were  within  their  jurisdiction,  the  defendant 
had,  in  fact,  been  found  guilty  without  any  investi- 
gation of  his  guilt,  and  without  any  power  left  to  the 
Jury  to  take  cognizance  of  his  innocence. 

That  2dly.  No  act  is  in  itself  a  crime,  as  abstracted 
from  the  malicious  intention  of  the  actor,  the  estab- 
lishment of  the  fact  being  nothing  more  than  evi- 
dence of  the  crime,  and  not  the  crime  itself,  unless 
the  Jury  render  it  so  by  referring  it  voluntarily  to 
the  Court  by  special  verdict.  That  in  every  case, 
a  general  verdict,  which  is  as  comprehensive  as  the 
issue,  unavoidably  involves  a  question  of  law  as 
well  as  fact,  and  therefore  that  a  judge  who  means 

*  Foster,  256-.  t  2  Lord  Bay.  H94- 


O.04 

to  direct  a  Jury  to  iitid  generally  against  a  defendant, 
must  leave  to  their  consideration  every  thing  which 
goes  to  the  constitution  of  that  general  verdict,  and 
to  direct  them  how  to  form  that  general  conclusion 
of  guilty,  which  is  compounded  of  both  law  and 
fact. 

That  the  verdict  must  be  taken  to  be  either  ge- 
neral or  special ;  if  general,  it  had  been  found  with- 
out a  co-extensive  examination — if  special,  the  term 
guilty  could  have  no  place  in  it :  that  the  term 
guilty  was  either  operative  and  essential,  or  a  mere 
epithet  of  form ;  if  essential,  then  a  conclusion  of 
criminal  intention  had  been  obtained  from  the  Jury 
without  permitting  them  to  exercise  their  judgment 
on  the  defendant's  evidence — if  formal,  no  judgment 
could  be  founded  on  it. 

3dly.  That  the  circumstance  of  the  libel's  appear- 
ing upon  the  record  did  not  distinguish  it  from  other 
criminal  cases.  For  first,  the  whole  charge  does 
not  always  appear  upon  the  record  ;  since  a  part  of 
a  publication  may  be  indicted,  and  may,  when  sepa- 
rated from  the  context,  bear  a  criminal  construction ; 
and  since  the  Court  is  circumscribed  by  what  ap- 
pears upon  the  record,  the  defendant  could  neither 
demur  to  the  indictment  nor  arrest  the  judgment 
after  a  verdict  of  guilty.  That  the  defendant  is 
equally  shut  out  (by  the  doctrine  insisted  on)  from 
deriving  any  aid  from  context,  in  his  defence  before 
a  Jury,  for  though  he  should  read  the  explanatory 
context  in  evidence,  he  can  derive  no  advantage 
from  reading  it,  if  the  Jury  are  bound  to  find  him 
guilty  of  publishing  the  matter  contained  in  the  in- 
dictment, however  its  innocence  mav  be  established 


•  ><).» 

by  a  view  of  the  whole  work  ;  that  the  only  opera- 
tion of  the  context,  is  to  show  the  matter  upon  re- 
cord not  to  be  libellous,  from  the  consideration  of 
which,  as  being  matter  of  law  for  the  consideration 
of  the  court,  they  are  excluded  :  that  to  allow  the 
Jury  to  go  into  the  context  in  order  to  form  a  cor- 
rect judgment  of  the  part  indicted,  is  a  palpable 
admission  of  their  right  to  judge  of  the  merits  of 
the  paper  and  the  intention  of  its  author ;  and  that 
it  would  be  preposterous  to  say  that  the  Jury  have 
a  right  to  decide  a  paper  criminal  as  far  as  appears 
upon  the  record,  to  be  legal,  when  explained  by 
the  whole  work,  of  which  it  is  a  part ;  but  that 
they  have  no  right  to  say,  that  the  whole  work,  if  it 
happen  to  be  set  out  on  the  record,  is  innocent  and 
legal. 

That  it  is  equally  absurd  to  contend  that  the  in- 
tention of  the  publisher  may  be  shown  as  a  fact  by 
the  evidence  of  any  extrinsic  circumstances — such 
as  the  context ;  and  in  the  same  breath  to  say  that 
it  is  an  inference  of  law  from  the  act  of  publication 
which  the  Jury  cannot  exclude.  That  the  conse- 
quences of  such  a  doctrine  would  be  most  danger- 
ous, since,  if  a  seditious  intention  could  be  inferred 
from  publishing  any  paper,  charged  to  be  a  libel,  a 
treasonable  intention  might  with  equal  reason  be  in- 
ferred from  publishing  a  paper  charged  to  be  an 
overt  act  of  treason. 

4thly.  That  a  seditious  libel  contains  no  matter 
of  law  ;  for  the  Court,  in  considering  the  question 
of  a  libel,  as  it  appears  upon  the  record,  are  circum- 
scribed in  forming  their  judgment,  and  can  derive 
no  assistance  from  extrinsic  circumstances  ;  since. 


$66 

if  they  were  to  break  through  their  legal  letter*, 
their  judgment  would  be  founded  in  facts,  not  in 
evidence  :  but  that  such  objections  would  vanish  if 
the  seditious  tendency  be  considered  as  a  question 
of  fact,  since  the  Jury  can  examine,  by  evidence, 
all  those  circumstances,  which  establish  the  sedi- 
tious tendency  of  the  paper,  from  which  the  Court 
are  shut  out. 

5thly.  That  in  all  cases  when  the  mischievous  in- 
tention, which  is  the  essence  of  the  crime,  cannot 
be  collected  by  simple  inference  from  the  fact 
charged,  because  the  defendant  goes  into  evidence 
to  rebut  such  inference,  the  intention  becomes  a 
pure  unmixed  question  of  fact  for  the  consideration 
of  the  Jury.  That  "  the  publication*  of  that  which 
is  unlawful  is  but  evidence  of  a  criminal  intent ;" 
but  that  in  the  principal  case  evidence  had  been 
offered  in  favour  of  the  defendant,  though  by  the 
learned  Judge's  directions  to  the  Jury,  the  whole 
of  it  had  been  removed  from  their  consideration. 
That  in  Lamb'sf  case  it  was  laid  down,  that  every 
one  who  should  be  convicted  of  a  libel  must  be  the 
writer,  contriver,  or  malicious  publisher,  knowing  it 
to  be  a  libel ;  that  the  knowledge  there  meant  was 
not  a  mere  knowledge  of  the  contents,  for  that 
would  make  criminality  depend  upon  the  conscious- 
ness of  an  act,  and  not  on  the  knowledge  of  its 
quality,  which  would  involve  lunatics  and  children 
in  all  the  penalties  of  criminal  law. 

Lord  Mansfield,  C.  J.  in  delivering  the  judgment 

*  Lord  Mansfield's  doctrine  in  the  cases  of  Woodfall  and  Almon.  5  Burr 
9661.  2686.  .  +  9  Co.  59. 


ft 

of  the  Court,  observed,  "  Four  objections  have  bee& 
made  ;  the  first  is  peculiar  to  this  case,  namely,  that 
evidence  of  a  lawful  excuse  or  justification  was 
not  left  to  the  jury  as  a  ground  of  acquittal.  Upon 
every  such  defence  there  arise  two  questions — the 
one  of  law,  the  other  of  fact.  Whether  the  fact  al- 
leged (supposing  it  true)  be  a  lawful  excuse,  is  a 
question  of  law  :  whether  the  allegation  be  true,  is 
a  question  of  fact ;  and  according  to  this  distinction, 
the  Judge  ought  to  direct,  and  the  Jury  ought  to  fol- 
low his  direction  ;  though  by  means  of  a  general 
verdict  they  are  intrusted  with  the  power  of  con- 
founding the  law  and  fact,  and  of  following  the  pre- 
judices of  their  affections  and  passions." 

The  learned  Judge  then  proceeded  to  comment 
upon  the  evidence  offered  by  the  defendant,  which 
the  Court  considered  as  rather  aggravating  his  con- 
duct than  supplying  a  ground  of  defence  to  be  left 
to  the  Jury.  His  Lordship  then  observed,  "  The 
second  objection  is,  that  the  Judge  did  not  give  his 
own  opinion  whether  the  writing  was  a  libel,  or  se- 
ditious, or  criminal.  The  third,  that  the  Judge  told 
the  Jury  that  they  ought  to  leave  the  question  upon 
the  record  to  the  Court,  if  they  had  no  doubt  of  the 
meaning  and  publication."  That  the  answer  to 
these  objections  is,  that,  by  the  constitution,  the 
Jury  ought  not  to  decide  the  question  of  law,  whe- 
ther such  a  writing  of  such  a  meaning,  published 
without  a  lawful  excuse,  be  criminal,  and  that  thev 
cannot  decide  it  against  the  defendant ;  because, 
after  a  verdict,  it  remains  open  upon  the  record. 
That  this  is  peculiar  to  the  form  of  a  prosecution  for 
libel,  that  the  question  of  law  remains  open  for  th< 


j6b 

Court  on  the  record,  and  that  the  Jury  cannot  de- 
cide it  against  the  defendant ;  so  that  a  general  ver- 
dict that  the  defendant  is  guilty  is  equivalent  to  a 
special  verdict  in  other  cases. 

That  no  case  had  been  cited  of  a  special  verdict 
in  a  prosecution  for  libel,  leaving  the  question  of  law 
upon  the  record  to  the  Court.  That  a  criminal  in- 
tent, from  doing  a  thing  in  itself  criminal  without  a 
lawful  excuse,  is  an  inference  of  law.  That  the 
practice  objected  to  had  continued  ever  since  the 
revolution  without  opposition.  That  the  funda- 
mental definition  of  trials  by  Jury,  depends  upon 
an  universal  maxim  without  an  exception,  Ad  quaes- 
tionem  facti  respondent  juratores,  ad  qiecestionem 
peris  respondent  judices  ;  that  where  the  questions 
can  by  the  form  of  pleading  be  separated,  the  dis- 
tinction is  preserved  upon  the  face  of  the  record ; 
but  that  when  by  the  form  of  pleading  the  two  ques- 
tions are  blended  together,  and  cannot  be  separated 
upon  the  face  of  the  record,  the  distinction  is  pre- 
served by  the  honesty  of  the  Jury.  His  Lordship 
concluded  by  giving  the  judgment  of  the  Court,  that 
the  rule  for  a  new  trial  should  be  discharged.* 

Lord  Kenyon,  C.  J.  adopted  Lord  Mansfield's 
doctrine  in  summing  up  to  the  Jury  in  the  case  of 
the  King  v.  Withers. f  As  a  matter  of  speculative 
curiosity,  it  is  most  singular,  that  the  determination 
of  the  four  points  of  which  the  guilt  of  a  libeller  is 
compounded  should  have  afforded  room  for  so  com- 
plicated an  argument  in  so  advanced  a  period  of 

*  Mr.  Erslvinc  afterwards  moved  in  arrest  of  judgment,  and  judgment  was 
arrested,  the  Court  considering  the  indictment  to  be  defective, 
t  3  T  .  R 


bingiish  jurisprudence  ;  the  case  comprehends  no 
more  difficult  elements  than  matters  of  construction 
and  of  intention,  questions  by  no  means  peculiar  to 
the  case  of  libel,  but  forming  ingredients  in  other 
criminal  charges,  though  under  different  modifi- 
cations.^) 

The  circumstance  of  this  discussion  is  the  more 
curious  from  the  consideration  that  the  contending 


(1)  The  first  article  of  the  Amendments  to  the  Constitution  of  the  United 
States,  provides,  that  Congress  shall  make  no  law  abridging  the  freedom  of  speech 
or  of  the  press  ;  and  the  Constitutions  of  most  of  the  States  contain  similar  pro- 
visions. The  Constitutions  of  Pennsylvania,  Delaware,  Kentucky,  Ohio,  Ten- 
nessee, Indiana,  and  Illinois,  provide  that  in  prosecutions  for  the  publicotion  of 
papers  investigating  the  official  conduct  of  officers,  or  men  in  public  capacity, 
or  where  the  matter  published  is  proper  for  public  information,  the  truth  thereof 
may  be  given  in  evidence.  The  Constitution  of  Maine,  provides  for  the  right 
to  give  the  truth  in  evidence  in  the  above-mentioned  cases,  and  extends  ii  to  pro- 
secutions for  any  publication  respecting  the  qualifications  of  those  who  are  can- 
didates for  the  suffrages  of  the  people.  It  is  also  provided  by  the  Constitutions 
of  the  above-mentioned  States,  that  the  jury  under  the  direction  of  the  Court 
shall  have  a  right  to  determine  the  law  and  the  facts.  The  3d  Sect,  of  the  Act 
of  Congress  of  1  ith  July,  17D9,  (Pamph.  Laws,  Vol.  5,  202,)  provided,  that  any 
person  prosecuted  under  that  act,  for  writing  or  publishing  any  libel,  might,  upon, 
the  trial  of  the  cause,  give  in  evidence  in  his  defence,  the  truth  of  the  matter 
contained  in  the  publication  charged  as  a  libel,  and  that  the  jury  should  have  a 
right  to  determine  the  law  and  the  fact,  under  the  direction  of  the  Court,  as  itv 
other  cases. — The  Constitutions  of  Connecticut  and  Mississippi,  provide  that  in 
all  prosecutions  or  indictments  tor  UIjcIs,  the  truth  may  be  ^iven  in  evidence, 
and  the  jury  shall  have  the  right  to  determine  the  law  and  the  facts,  tinder,  the 
direction  of  the  Court.  In  X.w  Jersey,  (Act  of  1:1th  June,  179'J,  Perm-  Rev, 
Laws,  475,)  and  Jftw-York,  (Act  of  6th  April,  1805,  Van  Mess  &  Wood.  Rev. 
Laws,  Vol.  2,  553,)  the  truth  maj  used  as  a  defence  in  all  prosecutions  for. 
libel.  But  in  the  latter  State  it  must  appear  satisfactorily  upon  the  trial,  that 
the  matter  charged  as  libellous  was  published  with  good  motives,  and  for  jus- 
tifiable ends,  or  the  truth  will  not  be  a  justification.  In  South  Carolina,  the  in- 
tention with  which  a  publication  is  made,  as  well  as  the  fact  of  publication,  and 
the  truth  of  the  innuendos,  are  involved  in  the  general  issue,  and  the  whole 
case,  law,  as  well  as  fact,  is  resolved  by  a  general  verdict.  State  v.  Allen,  1 
M'Cord's  Rep.  525.  See,  as  to  publications  in  relation  to  candidates  for  public 
office,  Comm.  v.  Clap,  4  Mass.  Rep.  163,  and  Mayrant  v.  Richardson,  I  Nott  &. 
M'Cord's  Rep.  347- 


57U 

parties  agreed  upon  all  the  points  which  may  be 
considered  as  essential  to  the  theoretical  and  ab- 
stract justice  of  the  case,  and  differed  only  as  to  the 
means  and  process  by  which  the  ends  of  justice 
might  be  best  accomplished,  it  being  on  all  parts 
admitted  that  a  mischievous  tendency  in  the  thing 
published,  and  a  criminal  intent  in  the  publisher, 
were  necessary  to  the  existence  of  the  crime. 

After  this  brief  review  of  the  principal  decisions 
upon  this  interesting  topic,  little  remains,  but  to 
quote  the  terms  used  by  the  legislature,  when  Par- 
liament  deemed  it  proper  to  interfere  and  remove  all 
doubt  from  this  important  subject. 

In  the  Statute  32  George  III.  c.  60.  it  is  recited, 
that  doubts  had  arisen,  whether,  on  the  trial  of  an 
indictment  or  information  for  the  making  or  pub- 
lishing any  libel,  when  an  issue  or  issues  are  joined 
between  the  King  and  the  defendant  or  defendants, 
on  the  plea  of  not  guilty  pleaded,  it  be  competent  to 
the  Jury  impannelled  to  try  the  same  to  give  their 
verdict  upon  the  whole  matter  in  issue  ;  and  it  is  then 
declared  and  enacted  that  on  every  such  trial  the 
Jury  sworn  to  try  the  issue  may  give  a  general  ver- 
dict of  guilty  or  not  guilty  upon  the  whole  matter 
put  to  issue  upon  such  indictment  or  information, 
and  shall  not  be  required  or  directed  by  the  Court 
before  whom  such  indictment  or  information  shall 
be  tried,  to  find  the  defendant  or  defendants  guilty, 
merely  on  the  proof  of  the  publication  by  such  de- 
fendant or  defendants  of  the  paper  charged  to  be  a 
libel,  and  of  the  sense  ascribed  to  the  same  in  such 
indictment  or  information.  By  the  second  section 
it  is  provided,  "  that  on  every  such  trial  the  Court  or 


Judge,  before  whom  such  indictment  or  information 
shall  be  tried,  shall,  according  to  their  or  his  dis- 
cretion, give  their  or  his  opinion  and  direction  to 
the  Jury  on  the  matter  in  issue  between  the  King 
and  the  defendant  or  defendants,  in  like  manner  as 
in  other  criminal  cases."  By  the  third  section  it  is 
also  provided,  "  that  nothing  herein  contained  shall 
extend,  or  be  construed  to  extend,  to  prevent  the 
Jury  from  finding  a  special  verdict,  in  their  dis- 
cretion, as  in  other  criminal  cases."  And  by  the 
fourth  section  "in  case  the  Jury  shall  find  the  de- 
fendant or  defendants  guilty,  it  shall  and  may  be  law- 
ful for  the  said  defendant  or  defendants  to  move  in 
arrest  of  judgment,  on  such  ground  and  in  such  man- 
ner as  by  law  he  or  they  might  have  done  before  the 
passing  of  this  act  any  thing  herein  contained  to  the. 
contrary  notwithstanding." 

Depositions  taken  before*  a  magistrate  are  not 
evidence  upon  a  trial  for  libel,  since  the  statutes,! 
by  which  such  are  made  evidence,  extend  to  the 
case  of  felony  only.  Where  a  paper  is  given  in 
evidence  as  having  been  written  by  the  defendant, 
he  is  entitled  to  have  the  whole  of  its  contents  read.  $ 

And  when  the  alleged  libel  was  contained  in  a 
newspaper,  the  defendant  was  allowed  to  have  an 
extract  from  a  distinct  part  of  the  same  paper,  but 
relating  to  the  subject,  read§  in  evidence. 

The  defendant  acknowledged  himself  to  have 
been  the  author  of  a  libel  produced  in  evidence, 
errors  of  the  press  and  some  small  variations  ex- 

*  R.  v.  Paine-    5  Mod.  163- 

1  1  and  2P.  and  M.  c.  13.  2  and  3  P.  and  M.  c.  10.  5  Mod    163 

§  R.  y.  Ijambert.   2  Camp.  399. 


-yi> 


cepted,  the  defendant's  Counsel  objected  that  tiit 
confession  was  not  absolute,  and,  therefore,  that  the 
libel  could  not  be  read ;  but  Pratt,  C.  J.  allowed  it 
to  be  read,  saying  he  would  put  it  upon  the  defend- 
ant to  show  material  variances.* 

A  Gazette  is  evidence,  to  provef  an  averment  in 
the  information,  that  certain  addresses  have  been 
presented  to  the  King.(l) 

*  It.  v.  Hall.    Str.  416.  |  R.  v.  Holt-    5  T.  R.  53S. 


(1)  So  also  the  King'?  Proclamation-     The  King  \-  Sutlnnt  \  Man-  k  Sclir 
532. 


573 


CHAPTER  XLI. 


Of  the  Proceedings  after  the  Trial. 

The  Court  will  not,  after  the  defendant's  con- 
viction, make  an  order  on  the  prosecutor  to  deposit 
the  original  libel  with  the  officer  of  the  Court.* 
After  the  defendant  has  been  found  guilty  on  a 
criminal  information,  it  is  a  matter  of  course  that 
he  should  stand  committed,  pending  the  considera- 
tion of  the  judgment,  unless  the  prosecutor  express- 
ly consent  to  his  standing  out  upon  bail.f 

The  defendant  cannot:}:  move  for  a  new  trial  after 
the  first  four  days  of  the  next  term  after  conviction  ; 
but  if  it  appear  to  the  Court  that  injustice  has  been 
done  by  the  verdict,  they  will  ex  mcro  motu  inter- 
fere after  that  period  and  grant  a  new  trial. 

The  vice  of  one  or  more  counts  is  no  ground  for 
arresting  the  judgment^  provided  there  be  one  valid 
count  in  the  information  or  indictment,  though,  as 
already  seen,  it  is  otherwise  in  a  civil  action,  where 
general  damages  are  given,  since  in  the  latter  case 

*  2  E.  It.  3G1.    R.  v.  Cator.  R,  v.  WacWington.    1  E.  143 

J  5  T.  R.  -13G-    l  F-  B  i ,  Benfield  and  Samlen   : 


£74 

the  Court  cannot  apportion  the  damages,  and  say 
how  much  was  intended  to  be  given  in  respect  of 
the  defective  counts. 

When  the  defendant  is  brought  up  for  judgment, 
affidavits  are  produced  either  by  the  prosecutor  or 
the  defendant ;  and  observations  concerning  them 
relate  either  to  their  contents  or  to  the  order  in  which 
they  are  read. 

Where  a  defendant  has  been  convicted,  the  pro- 
secutor may  read  affidavits  in  aggravation,  though 
made  by  witnesses  who  were  examined  at  the  trial ; 
in  which  case  the  defendant  will*  be  at  liberty  to 
answer  them. 

And,  where  a  defendant  hadf  suffered  judgment 
by  default,  the  prosecutor  was  allowed  to  read  affi- 
davits in  aggravation,  containing  expressions  made 
use  of  by  the  defendant,  confirming  and  aggravating 
his  guilt,  which  had  been  uttered  by  him  in  the  hear- 
ing of  two  persons,  and  by  them  afterward  related 
to  the  persons  making  the  affidavits,  the  prosecutor 
having  first  made  affidavit  that  an  application  had 
been  made  to  both  those  persons  to  come  forward 
with  their  testimony,  which  they  had  refused,  and 
it  appearing  to  the  Court  that  they  were  under  con- 
trol. But  the  Court  allowed  the  defendant  and 
those  persons  time  to  come  forward  and  answer  the 
facts.  And  such  evidence  would  be  inadmissible, 
unless  it  appeared  that  the  person  refusing  to  give 
evidence  wast  under  the  control  of  the  defendant, 

To  show  the  malice  of  the  defendant,  it  is  usual 

*  R.  v.  Sharpness,  1  T.  R.  228.  ?  R.  v.  Archer,  2  T.  R  204 

I  R.  v.  Pinherton,  2  E.  R.  357. 


tor  the  prosecutor  to  state  upon  his  affidavit  similar 
libels  published  since  the  conviction.* 

After  judgment  by  default  in  a  criminal  prosecu- 
tion, when  the  defendant  is  brought  up  for  the  judg- 
ment, each  party  should  come  prepared  with  affida- 
vits stating  his  case  ;  and  if,  in  the  course  of  the 
inquiry,  the  Court  wish  to  have  any  point  further 
explained,  they  will  give  the  defendant  an  oppor- 
tunity of  answering  it  on  a  future  day.f 

The  defendant  is,  in  general,  at  liberty  to  in- 
troduce any  affidavit  tending  to  show  that  his  act 
did  not  result  from  pure  malice,  but  proceeded 
from  some  motive  less  reprehensible :  how  far  he 
shall  proceed  in  his  statement  is,  of  course,  a  mat- 
ter ofprudence  and  discretion  to  be  exercised  upon 
the  particular  circumstances  of  the  case. 

Any  reflections  upon  the  prosecutor  beyond  those 
conveyed  by  a  bare  statement  of  facts,  and  any 
attempt  to  impugn  the  credit  of  the  witnesses,  or 
the  justice  of  the  conviction,  are  inconsistent  with 
the  situation  of  the  defendant,  who  stands  before 
the  Court  as  a  supplicant  for  its  indulgence,  and 
not  in  the  character  of  an  accuser.  Where  the 
libel  has  alleged  specific  charges,  it  has  been  heldi 
that  the  defendant  is  at  liberty  to  prove  the  truth 
of  such  charges  by  affidavit,  in  mitigation  of  pu- 

*  See  R.  v.  Withers.  3  T.  R.  432.  Where  Ld.  Kenyon,  Chief  Justice,  said, 
"  It  is  well  settled  that  the  conduct  of  the  defendant,  subsequent  to  his  con- 
viction, may  be  taken  into  consideration  either  by  way  of  aggravating  or  miti- 
gating the  punishment ;  but  the  Court  will  take  care  not  to  inflict  a  greater 
punishment  than  the  principal  offence  will  warrant."  The  same  was  ruled  in 
the  case  of  R.  v.  Walter- 

t  R.  v.  Wilson,  4  T.  R.  487. 

X  Dig.  L.  L.  16.  Bac.  Ab.  tit.  lib-  456-  Per  Ld.  Mansfield,  C.  J.  R.  v. 
Roberta-    B-  R.    M-  8  G.  2.  MSS- 


o7t> 

uishment ;  but  this  must  be  done  upon  a  plain 
statement  of  circumstances,  strictly  relevant  to  the 
matter  charged  in  the  libel,  though  the  defendant 
might  not  be  considered  as  confined  to  rules  so  strict 
as  those  which  are  observed  in  civil  cases  in  plead- 
ing a  justification.  (1) 

The  defendant  must,  nevertheless,  confine  him- 
self to  facts  immediately  and  strictly  connected  with 
the  libellous  assertion  :  for,  otherwise,  he  would 
be  able,  by  a  general  charge,  to  put  the  prosecu- 
tor's whole  life  and  conduct  in  issue,  and  the  pro- 
ceedings of  the  Court  might  be  perverted  into  the 
means  of  publishing  the  most  atrocious  calumnies 
with  impunity. 

The  precise  purpose  of  such  a  statement  is  to 
diminish  the  criminalty  of  the  defendant's  mo- 
tive and  intention  in  the  eyes  of  the  Court,  and 
to  show  that  his  act  did  not  result  from  pure 
malice ;  this  end  should  be  cautiously  regarded 
by  the  defendant  in  framing  his  affidavits,  since  it 
is  easy  to  conceive  that  in  some  instances  an  actual 
statement  of  facts  may  serve  the  more  strongly  to 
illustrate  his  malice,  the  truth  of  a  publication 
being  by  no  means  conclusive  as  to  the  malice  of 
the  publisher.  Should  the  affidavit  betray  an}r 
other  object  beyond  the  partial  exculpation  of  the 
defendant,  it  would,  if  not  rejected  by  the  Court, 


(1)  Where  a  defendant  was  convicted  of  a  libel  which,  on  tbe  face  of  it,  pur- 
ported to  have  been  written  in  consequence  of  his  having  read  a  statement  of 
facts  in  different  newspapers,  an  affidavit,  that  he  did  read  such  statements  in 
such  newspapers,  may  be  received  in  mitigation  of  punishment ;  but  an  affidavit 
that  the  facts  contained  in  those  statements  were  true,  is  not  admissible-  The 
King  v.  Burdelt,  4  Barn.  &  Aid-  314. 


57' 


(which  in  all   such  cases    listens  to  affidavits,    in 
order  to  inform  its  conscience,  and  not  as  a  matter 
of  obligation,)  at  all  events  operate  to  his  prejudice. 
General  evidence,  of  good  character,  is  always  a 
proper  topic  to  be  introduced  into  affidavits  in  miti- 


gation. 


It  is  not  usual  to  give  the  defendant  an  opportu- 
nity of  answering  at  a  future  day  the  affidavits  pro- 
duced by  the  prosecutor,  where  they  do  not  extend 
beyond  the  allegations  contained  in  the  indictment, 
though  judgment  should  have  been  suffered  by  de- 
fault.* But  where  affidavits  are  produced  to  show 
a  continuation  of  the  defendant's  malice,  the  Court 
has  thought  it  reasonable  to  allow  the  defendant  an 
opportunity  of  answering  them,  since  it  cannot  be 
supposed  that  he  comes  prepared  to  answerf  that 
which  is  not  contained  in  the  indictment. 

With  respect  to  the  order  observed  in  reading- 
affidavits  : 

When  a  defendant  is  brought  up  to  receive  judg- 
ment after  conviction  for  a  libel,  his  affidavits!  are 
first  read,  and  then  the  prosecutor's  ;  after  which, 
the  defendant's  counsel  are  first  heard,  and  then  the 
prosecutor's. 

When  the  defendant  is  brought  up  on  judgment 
by  default,  the  prosecutor's  affidavits  are  first  read, 
and  then  the  defendant's  ;  after  which  the  counsel 
for  the  prosecution  are  heard,  and  then  the  counsel 
for§  the  defendant. 

Where  there  are  no  affidavits,  the  defendant's 

*  R.  v.  Wilson,  4  T.  R.  487-  t  lb-  and  R.  v.  Archer,  2  T.  R.  203 

t  R-  Mich.  29  G.  3.    Tidd.  Pr.  454.    4th  Ed.     • 
j  F.Mich.    29  G.  3-    Tidd.  P.  454.    2  T.  R.  683- 

73 


o7b 

counsel  always  begin ;  where  judgment  is  by  de- 
fault, and  there  are  affidavits  for  the  defendant,  but 
none  for  the  prosecution,  the  defendant's  counsel 
begin.*    . 

Of  the  punishment. 

No  offence  seems  to  have  been  visited  with  pun- 
ishments so  varied  in  species  and  degree,  as  that 
which  is  the  subject  of  the  foregoing  treatise  ;  a 
striking  proof  how  difficult  it  is  to  estimate  its  evil 
consequences,  and  of  the  different  conceptions  which 
in  different  communities,  have  been  entertained  of 
their  magnitude. 

The  history  of  foreign  countries  exhibits  the  pen- 
alties for  this  crime  in  every  gradation,  from  the  in- 
fliction! of  death  to  the  bleeding  of  the  offending^ 
organ  ;  even  in  this  it  has  been  punished  with  very 
different  degrees  of  severit}',  and  the  history  of  the 
Star  Chamber  records  sentences  upon  libellers 
whose  rigour  can  scarcely  be  exceeded  :  thus  Wren- 
num,  for  traducing  and  scandalizing  the  Lord  Chan- 
cellor Bacon,  in  a  book  delivered  to  the  king,  was 
sentenced  by  that  Court  to  be  perpetually  imprison- 
ed, to  pay  a  fine  of  1,000/.,  to  be  twice  pilloried,  and 
to  lose  both  his  ears.  Leighton,  for  his  publication, 
intituled  "  An  Appeal  to  Parliament,  or  Sion's  Plea 
against  Prelacy,"  was  sentenced  to  pay  a  fine  of 
10,000/.,  to  be  whipt  at  the  pillory  twice,  to  lose 
both  his  ears,  to  have  his  nose  slit  and  face  branded, 

-  R.  v.  Fintierty,  Hil.  T.  1311. 

f  By  the  law  of  the  Twelve  Tables,  "Si  quis  accentasset  malum  carmen,  she 
condidisset  quod  infamiam  faxit  flagitiumque  alteri  capital  esto-"  Wood's  Cir.  L. 

|  According  to  Sir  £.  Coke,  the  Lydians  bled  the  slanderer  in  the  tongue, 
and  the  listener  in  the  car,  12  R.  35.  By  the  laws  of  Alfred,  the  "Publicum 
meudacium"  was  to  be  punished  by  the  cutting  out  of  the  tongue,  subject  tft  re- 
kmption,  JMta  capitis  a>stim'ationcm-     Wilk.  Leo;.  An.  Sax.  41. 


679 

and  to  be  imprisoned  in  the  Fleet  during  life.*  it 
would  be  impertinent  in  this  place  to  refer  to  other 
instances ;  the  cases  of  Prynne,  Burton,  Bastwick, 
and  other  sufferers  are  too  well  known  in  history  to 
bear  recital,  and  their  sentences  remain  lasting  and 
disgraceful  memorials  of  the  severity  of  the  tribunal 
by  which  they  were  inflicted. 

One  of  the  earliest  instances  in  which  a  libeller 
was  sentenced  to  the  pillory  at  common  law,  ap- 
pears to  have  been  that  of  Hugh  Baker,  who,  in 
the  fourth  year  of  Elizabeth  was,  for  publishing  a 
libel  upon  some  of  the  inhabitants  of  Chertsey,  sen- 
tenced to  imprisonment,  pillory,  and  to  find  security 
for  his  goodf  behaviour.  Since  that  period,  this 
mode  of  punishment  at  Common  Law  has  not  been 
unusual,  but  has  seldom  been  inflicted  in  modem 
times,  except  in  cases  marked  by  some  peculiar 
atrocity,  and  has  generally  been  reserved  for  the 
more  signal  disgrace  of  those  who  have  been  con- 
victed of  disseminating  profane  and  obscene  libels. 
As  a  misdemeanor,  at  Common  Law,  the  offence  is 
of  course  punishable  by  fine  and  imprisonment,  at 
the  discretion  of  the  Court,  after  a  full  consideration 
of  all  the  circumstances,  tending  either  to  extenuate 
or  aggravate  the  guilt  of  the  offender.  In  addition 
to  this,  it  is  frequently  deemed  proper  to  impose 
upon  the  offender  the  condition  of  finding  security 
for  his  good  behaviour  for  a  limited  term,  by  which 
expedient  the  Court  are  enabled  to  extend  anhumane 
indulgence  to  the  criminal,  in  respect  of  the  duration 
of  his  imprisonment,  without  compromising  their 
first  and  great  duty  to  the  public,  the  providing  for 
its  future  security. 


6C- 1.    1631.  I  3  Ins.  220. 


o80 


CONCLUSION". 

Having  thus  pursued  this  branch  of  jurispru- 
dence through  its  various  divisions,  it  may  be  per- 
mitted, before  the  subject  is  dismissed,  briefly  to 
consider  how  far  the  wisdom  of  our  law  has  over- 
come those  difficulties  which  were  slightly  suggest- 
ed in  the  introduction  to  this  treatise.  In  the  first 
place  it  is  worthy  of  remark,  that  no  branch  of  our 
municipal  law,  equally  difficult  and  extensive, 
contains  so  little  intermixture  of  positive  and 
legislative  enactment  as  that  which  regulates  in- 
tellectual intercourse:  this  portion  may  be  con- 
sidered as  an  almost  pure  derivative  from  the  source 
of  common  law,  and  however  complicated  it  may  be 
in  its  adaptation  to  the  equally  complicated  con- 
cerns and  transactions  of  society,  its  elements  are 
few  and  simple. 

Wherever  the  exigencies  of  society  render  it 
necessary  for  the  legislature  to  interfere,  its  pro- 
hibitions and  prescriptions  must  necessarily  be 
abrupt  and  peremptory,  and  modified  very  differ- 
ently from  those  rules,  which,  suggested  by  prac- 
tical convenience,  and  sanctioned  by  experience, 
are  gently  and  gradually  moulded  into  law,  at  the 
discretion  of  those  who  preside  in  our  Courts. 

The  predominant    feature   which    characterizes 


5$1 

this  branch  of  law,  is  the  establishment  of  malice, 
as  the  great  essential  to  both  civil  and  criminal 
liability.  This  is  the  important  distinction,  which 
reconciles  with  the  security  of  the  state  and  the 
welfare  of  the  individual,  that  free  communication 
of  ideas,  for  the  enjoyment  of  which  man  is,  by  his 
powers  intellectual  and  physical,  admirably  quali- 
fied: it  is  this  which  serves  to  define  the  limits 
of  communication  in  a  legal  as  well  as  moral  sense, 
and  upon  this  basis  of  mere  abstract  immorality,  the 
legal  remedies  are  with  wonderful  simplicity  erect- 
ed ;  their  mutual  connexion  and  relations  may  be 
comprised  in  three  sentences 

Any  communication  made  with  a  malicious  intent 
is  immoral. 

When  such  a  malicious    act   produces   mischief 
to  the  individual  it  becomes  actionable. 

When  it   produces  mischief  to  the  public,  it  be- 
comes indictable. 

If  the  system  be  viewed  still  nearer,  its  minuter 
provisions  have  a  claim  to  admiration.  To  found 
an  action  at  common  law,  a  wrongful  act  must,  in 
general,  be  combined  with  an  actual  damage;  but 
to  facilitate  the  remedy  against  slander,  the  law, 
applying  itself  to  the  urgency  of  the  case,  lays 
aside  its  usual  strictness  ;  and  where  the  requir- 
ing proof  of  an  actual  loss  would  produce  evil  con- 
sequences to  the  plaintiff,  where  the  presumption 
of  damage  is  violent,  but  the  difficulty  of  proving  it 
considerable,  the  law  supplies  the  defect,  and  by 
converting  presumption  into  proof  rescues  the  cha- 
racter of  the  sufferer  from  the  misery  of  delay,  and 
enables  him  at  once  to  face  the  calumny  in  open 
court. 


582 

But  inasmuch  as  this  is  an  indulgence  purchased 
at  the  price  of  a  departure  from  a  general  rule,  it  is 
wisely  restricted  to  cases  where  delay  would  be 
pregnant*  with  danger,  and  where  the  calumny  is 
likely  to  affect  the  complainant  in  his  liberty,  office, 
or  means  of  livelihood  ;  nor  will  the  law  in  any  case 
extend  redress  to  a  party  who  has  not  suffered  from 
slander,  false  as  well  as  malicious,  and  in  a  spirit 
of  genuine  purity  carefully  excludes  from  its  courts 
every  one  whose  conduct  is  infected  with  the  guilt 
of  that  charge  upon  which  his  complaint  is  founded. 

The  elements  which  constitute  the  criminal  of- 
fence, namely,  a  malicious  publication  tending  to 
the  detriment  of  the  community,  simple  as  they 
are,  conduce  mainly  to  individual  security  and 
public  tranquillity.  As  the  natural  right  of  society 
to  prohibit,  under  penalties,  any  wilful  and  overt 
attempt  to  produce  disorder  and  confusion  is  indis- 
putable, so  likewise  is  the  policy  which  crushes 
the  very  seeds  of  discord  and  immorality,  rather 
than  suffer  them  to  expand  and  ripen  into  mischief. 
Still  this  preventive  vigour  is  strictly  consistent  with 
the  most  ample  degree  of  liberty  in  the  subject. 
Every  individual  in  the  realm  is  entitled  to  publish 
what  he  thinks  fit  independent  of  previous  control, 
and  cannot  be  deemed  acriminal  for  having  published, 
until  a  judge  shall  have  declared  his  opinion  that  the 
publication  is  illegal,  and  a  Jury  of  his  country  shall' 
have  decided  upon  oath,  after  a  consideration  of  the 

*  To  this  general  rule  there  is,  as  has  been  already  observed,  a  painful  ex- 
ception ;  it  cannot  but  be  considered  as  a  disgrace  to  this  branch  of  the  law, 
that  the  reputation  of  females  of  every  rank  should  be  leit  exposed  to  imputa- 
tions most  odious,  offensive,  and  mischievous,  though  the  skill  and  integrity  of 
the  lowest  mechanic  cannot  be  reflected  upon  with  impunity. 


&S8 

alleged  libel,  its  tendency,  and  all  the  accompany 
ing  circumstances,  that  his  intention  was  malicious, 
and  therefore  criminal ;  and  after  all  he  is  not  de- 
barred from  appealing  to  another  tribunal,  for  the 
purpose  of  ascertaining  whether  that,  which  after 
conviction  must  be  taken  to  have  been  published 
with  a  malicious  mind,  contains  that  intrinsic  ten- 
dency to  produce  mischief,  which  constitutes  it  a 
libel  in  the  criminal  sense. 

In  these  two  circumstances,  the  necessity  of  a 
malicious  intent,  and  the  mode  in  which  that  intent 
is  to  be  ascertained,  is  founded  the  liberty  of  com- 
munication in  the  most  valuable  sense  of  the  word ; 
the  first  forms  the  plain  boundary  between  right  and 
wrong,  which  no  man,  whose  intentions  are  pure, 
needs  fear  to  transgress ;  the  other  assures  to  him  an 
impartial  inquiry  into  those  motives,  should  they  be 
called  in  question.  What  other  means  could  be 
devised  for  securing  the  liberty  and  restraining  the 
licentiousness  of  the  press  at  once  so  simple  and 
effectual  ? 

No  declaimer  was  ever  silly  enough  to  contend 
that  all  publications,  however  malicious,  or  however 
mischievous,  ought  to  pass  unrestrained;  but  al- 
lowing restraint  to  be  necessary  where  the  intention 
is  malicious  and  tendency  mischievous,  how  can  the 
existence  of  these  be  best  ascertained  ?  It  is  plain 
that  mere  tendency  is  too  subtle  in  its  nature  to  be 
defined  by  human  laws ;  it  depends  upon  circum- 
stances infinitely  combined  and  perpetually  fluctua- 
ting, admitting  no  other  means  of  ascertainment, 
than  the  application  of  a  strong  judgment  to  the 
subject  matter,  its  context,  and  those  extrinsic  cir- 


584 

eumstanees  which  are  capable  of  illustrating  its 
meaning  :  the  intention  too  must  be  collected  from 
the  publication  itself,  and  the  accompanying  facts ; 
to  refer,  therefore,  the  alleged  libel  and  its  circum- 
stances to  the  joint  consideration  of  the  Court  and 
a  Jury,  by  which  means  the  latter  are  put  in  pos- 
session of  the  legal  opinion  and  experience  of  the 
former,  and  are  thereby  assisted  in  forming  a  cor- 
rect judgment  upon  the  defendant's  intention, 
appears  to  be  the  happiest  expedient  which  in- 
genuity could  suggest  for  at  once  arriving  at  the 
truth  and  securing  the  rights  and  liberties  of  the 
subject. 


585 


NOTES 


[  i  J 

P.  2. — "  The  injury  could  seldom  extend  beyond,"  &c. 

The  rude  member  of  a  warlike  tribe  would  quickly  resent  any  reflection  upon 
his  courage,  strength,  or  prowess:  to  restrain  such  would  therefore  be  one  of 
the  earliest  efforts  exerted  by  a  people  beginning  to  substitute  general  laws,  as 
the  security  for  good  manners,  in  the  place  of  individual  violence.  By  the  an- 
cient law  of  the  Burgundians, 

Si  quis  alterum  concagatum  clamaverit  120  denariis  mulctctur.  Si  quis  vul- 
peculam  alterum  clamaverit  vel  leporem  eodem  modo  mulctctur.  "  These,"  as 
observed  by  a  learned  writer,  "  appear  plainly  to  be  the  laws  of  a  warlike  nation, 
in  which  the  calling  another  by  a  name,  which  implied  cunning  or  flight,  rather 
than  courage  and  resistance,  was  thought  a  heinous  infamy."  Barrington  on 
the  penal  statutes.  What  a  different  state  of  society  is  suggested  by  the  fol- 
lowing canon:  "Si  quis  dixerit  episcopum  podagra  laborarc  anathema  sit." 
Menagian,  T.  1.  16.  It  seems  clear,  that  good  breeding  and  polite  manners 
cannot  become  the  subject  matter  of  legislation  ;  mere  injuries  to  the  feelings  are 
too  unsubstantial  and  evanescent  in  their  nature  to  bear  definition  ;  the  very 
tone  of  voice  and  expression  of  countenance  in  such  cases  not  unfrequently  con- 
stitute the  insult;  nay,  in  some  instances,  even  silence  may  wound  more  se- 
verely than  the  most  abusive  language.  Against  such  affronts  no  legislative 
enactment  can  defend,  and  it  is  not  difficult  to  conceive  that  a  high  sense  of 
honour  is  a  better  security  against  -ross  manners  than  any  penal  laws,  which 
must  necessarily  define  the  particular  insults  intended  to  be  restrained,  and  of 
course  leave  a  far  greater  number  to  be  practised  with  impunity. 

[2  ] 
p.  13.—"  Without  proof  of  special  damage,"  &c. 
According  to  Vaughan,  C  J.  2  Vent.  28,  at  one  time  no  action  lay  without 
proof  of  special  damage,  unless  the  slander  concerned  the  plaintiff's  life  ;  and  it 
was  not  actionable  to  call  another  a  villain,  unless  it  were  added  he  was  lain  in 
wait  to  be  seized.  The  C.  J.  added,  "  The  growth  of  these  actions  will  spoil 
all  communications  ;  a  man  shall  not  say  such  an  inn  or  such  wine  is  not  good." 

74 


§86 

L  3  J 

1>.  !S.— "  Criminal  liability  is  not  always  the  exclusive  ground,"  &c. 

To  the  confirming  instances  cited  may  be  added,  the  class  of  cases  in  which 

it  has  been  held,  that  a  pardon  granted  after  the  commission  of  the  offence,  but 

before  the  speaking  of  the  words,  will  enable  the  plaintiff  to  maintain  his  action 

See  Cuddington  v.  Wiikins,  Hob.  81. 

[4] 
P.  32. — "  The  purpose  or  intent  of  a  man  without  action,"  &c. 
Sec  also  Lord  Ellenborough's  dictum,  4  Esp.  219. 

[  5  ] 
p>  25. — "  To  impute  incontinency  to  a  female  in  London,"  &c. 
Such  an  action  is  not  removeable  from  London  by  habeas  corpus.     Cro. 
Car.  486. 

[  6  ] 
P.  106. — "  Of  a  member  of  parliament." 
But  words  otherwise  actionable  are  not  the  less  so  because  applied  to  a  can- 
didate to  serve  in  parliament.     Harwooct  v.  Sir  J.  Astley  in  error,  1  N.  R.  47. 

E*3 

P.  113. — "  Words  imputing  dishonesty  to  a  tradesman,"  &c. 

in  Fcise  v.  Linder,  3  B.  and  P.  372.  The  plaintiff  stated,  that  he  was  a  mer- 
chant, and  had  received  a  bill  of  lading  relating  to  certain  goods  consigned  to 
him,  which  bill  of  lading  he  produced  to  the  defendant,  and  required  the  de- 
livery of  the  goods,  when  the  defendant  maliciously  published  concerning  the 
plaintiff  in  his  business  and  the  premises  these  words,  "  He  has  brought  a  false 
bill  of  lading  for  half  the  cargo  already." 

After  a  verdict  for  the  plaintiff  judgment  was  arrested  on  the  ground,  that  the 
words  without  special  damage  were  not  actionable  ;  but  from  the  report  of  this 
case  the  attention  of  the  Court  seems  to  have  been  chiefly  directed  to  the  ques- 
tion, whether  the  words  were  actionable  as  imputing  a  crime  ?  and  it  does  not 
seem  to  have  been  much  considered,  whether  they  were  not  actionable  as  having 
been  spoken  falsely  and  maliciously  concerning  a  merchant  in  his  business,  and 
tending  to  injure  him  in  his  means  of  livelihood. 

[  s  ] 

P.  126.     Chap.  5.—"  Written  slander." 
Since  this  chapter  was  printed,  the  distinction  between  oral  and  written  slan- 
der has  been  recognised  in  the  Exchequer  Chamber- 

Lord  Kerry  founded  his  action  upon  a  libel  charging  him  with  being  a  hypo- 
crite and  using  the  cloak  of  religion  for  unworthy  purposes-  He  had  a  verdict 
with  20/.  damages  at  the  Kingston  Spring  assizes,  1SP9.  and  had  judgment  in 


£87 

ihe  Court  of  King's  Bench  without  argument,  whereupon  a  writ  of  error  was 
brought  in  the  Exchequer  Chamber.  Sir  James  ManBfield,  C.  J.  on  giving  judg- 
ment for  the  defendant  in  error  (East.  T.  1S12)  observed,  that  this  was  cer- 
tainly a  libel  for  which  the  writer  might  have  been  indicted,  but  he  had  enter- 
tained considerable  doubts,  whether  it  could  be  the  ground  of  a  civil  action  ?  As 
to  a  civil  action  there  seemed  to  be  no  well  founded  distinction  between  written 
and  unwritten  slander.  The  reasons  given  in  the  books  for  the  distinction  arc 
very  insufficient.  One  reason  is,  that  by  writing  the  scandal  becomes  more  dif- 
fused ;  but  this  is  casual,  for  words  may  be  spoken  under  circumstances  which 
shall  give  them  much  more  publicity  and  rendei  them  much  more  injurious  than 
if  they  were  committed  to  paper  and  shown  to  a  third  person  ;  another  reason 
is,  that  the  writing  of  the  scandal  shows  more  malice  in  the  defendant ;  but  the 
true  foundation  of  a  civil  action  is  some  damage  sustained  by  the  plaintiff,  and 
not  the  malice  which  actuates  the  defendant.  It  was  with  great  difficulty  his 
Lordship  had  brought  his  mind  to  yield  to  the  authority  of  the  cases  upon  the 
subject.  There  were  cases,  however,  establishing  this  distinction  above  a  cen- 
tury ago,  and  dicta  to  the  same  effect  by  Lord  Hale,  Lord  Hardwicke,  and  other 
very  learned  and  eminent  judges,  and  the  Court  could  not  now  venture  to  over- 
turn a  rule  sanctioned  by  the  practice  of  a  century,  and  the  authority  of  so 
many  great  names.     Judgment  affirmed,  3  Camp.  214. 

To  the  cases  cited  in  proof  of  the  distinction  may  be  added,  Sir  Baptist  Hicks's 
case,  Hob.  215. 

King  of  Gray's  Inn  v.  Sir  E.  Lake,  2  Vent.  28. 

Harman  v.  Delany,  Str.  SSS.  D.  L.  L.  13.  In  the  latter  case  the  Court  ob- 
served, that  if  bare  words,  affecting  a  man  in  his  trade,  were  actionable,  i( 
would  be  much  stronger  in  the  case  of  a  libel  in  a  public  newspaper,  which  is 
more  diffusive. 

[9] 
P.  138. — "The  general  rule  appears  once  to  have  bcen,"&c. 
See  1  Buls.  40.  and  supra  p.  22.     In  2  Vent.  28,  Vaughan,  C.  J.  observed, 
"in  ancient  hooks  we  do  not  read  of  an  action  for  words  unless  the  slander 
concerned  life." 

[  io  ] 

P.  154.— "Riding  Skimmington," &c. 
It  has  been  held  that  this  practice  is  not  actionable,  Lord  Raymond.  201  ; 
but  in  2  Show.  314.  it  was  said,  that  the  carrying  a  fellow  with  horns  bowing  at 
the  plaintiff's  door  is  actionable;    and  the  ease  of  Sir  W.  Bolton  v.  Dean  was 
referred  to. 

[  ii  3 

P.  161.—"  Loss  of  marriage,"  &c. 
Upon  the  same  grounds  it  is  actionable,  falsely  and  maliciously,  to  say  that  a 
person  in  treaty  to  marry  is  under  a  precontract,  the  marriage  having  by  such 
words  been  defeated,  11  Mod.  99  ;  for  the  loss  of  marriage  is  a  temporal  da- 
mage, and  proceeds  from  (he  wrong  of  the  defendant,  viz,  his  false  and  malicious 
assertion, 


58!? 

[  12  ] 
P.  173. — "  The  defendant's  malice  is  immaterial,"  &c. 
So  where  the  plaintiff  procures  the  publication  of  that  on  which  the  complaint 
is  founded.     See  3  B.  and  P.  594.     5  Esp.  R.  15.     1  T.  R.  110. 

[   13  ] 

P.  178. — "  A  man  may  justify  in  an  action  for  a  libel." 
A  similar  opinion  was  also  expressed  by  Lord  Ellenborough,  C.  J.  in  the  case 
of  Plunkett  v.  Cobbett,  May  1804.     [5  Esp.  Rep.  136.] 

[    14   ] 

P.  179. — "  The  justification  must  be  pleaded  and  proceed  with  great  precision," 

&c. 
See  Bell  v.  Byrne,  13  East.  554.  It  was  there  held  that  an  allegation  in  the 
plea,  that  "  the  plaintiff  had  been  confined  in  England  on  a  charge  of  high  trea- 
son," was  not  supported  by  proof  that  the  plaintiff  had  been  apprehended  on  a 
warrant  from  the  Duke  of  Portland,  one  of  the  Secretaries  of  State,  on  suspicion 
of  high  treason.     See  also  R.  v.  Lofeild,  D.  L.  L.  78.    supra  p.  228. 

[  15  ] 

P.  180. — "  If  he  had  been  convicted  and  pardoned  afterwards,"  &c. 

In  Searle  v.  Williams,  Hob.  288,  Lord  Hobart  held,  that  "  for  an  accusation 
reflecting  upon  any  man  for  an  offence  for  which  he  has  been  indicted,  con- 
victed, and  had  his  clergy  allowed,  an  action  lies  as  if  he  had  been  acquitted 
from  it."  And  the  same  learned  Judge  also  held,  that  though  the  statute  18 
Eliz.  c.  7.  required  a  burning  in  the  hand  previous  to  the  prisoner's  discharge  ; 
yet,  that  if  he  had  his  clergy  he  would  be  entitled  to  all  the  benefit  of  the  statute, 
though  he  should  not  be  burnt  in  the  hand.  But  it  was  laid  down  by  Ld.  C.  J. 
Treby  and  his  brethren,  on  the  trial  of  the  Earl  of  Warwick  for  the  murder  of 
Mr.  Coote  (St.  Tr.  11  W.  3.)  that  when  the  prisoner  is  liable  to  burning  in  the 
hand,  the  mere  allowance  of  his  clergy,  without  burning  in  the  hand,  will  not 
restore  the  party  to  his  credit.  See  also  Lord  Castlemaine's  case,  3  St.  Tr.  47. 
But  it  has  been  said,  that  it  is  sufficient  to  produce  the  record  whereby  clergy 
was  granted,  without  proving  an  actual  burning.  Com.  Dig.  tit.  Testmoigne 
A.  4.  A  general  pardon  after  outlawry  for  felony  will  not  restore  credit  to  the 
offender,  3  St.  Tr.  47. 

And  it  has  been  said,  that  a  pardon  after  a  conviction  for  perjury  will  in  no 
case  restore  the  offender  to  credit,  1  Vent.  349.     1  Sid.  52. 

But  by  5  Eliz.  c.  9.  the  disability  to  give  evidence  is  part  of  the  judgment,  and 
on  that  account,  according  to  Holt,  C.  J.  (R.  v.  Crosby,  Salk.  689.)  cannot  be 
lvemoved  by  a  subsequent  pardon.     See  Co.  Ent.  368.     Rast.  S6. 

[   16  ] 
P.  182.—"  No  member  of  either  house,"  &c. 
The  St.  4  H.  8.  c.  8.  protecting  certain  persons  from  all  suits,  &c. ;  for  any 


589 

bill,  speaking',  or  reasoning  concerning  parliament  was  Ueld  by  ail  the  judges  to 
be  a  particular  law.  5  Car.  Rush.  662.  but  the  contrary  was  declared  in  par- 
liament.    Cro.  Car.  604. 

By  a  resolution  of  the  Commons,  19  J.  1.  no  member  shallbe  molested  for 
any  thing  said  or  done  in  parliament,  except  by  the  house.  See  also  Cro.  Car. 
604.  Rush.  G62,  663.  St.  17  C.  2.  1.  By  St.  1  VV.  and  M.  2.  s.  2.  it  is  de- 
clared, that  freedom  of  speech  and  debate,  or  proceedings  in  parliament,  ought 
not  to  be  impeached  or  questioned  in  any  court  or  place  out  of  parliament. 

[    I?    ] 

P.  183.—"  The  same  rule  applies  to  judges,"  &c. 

"  With  regard  to  judges  and  jurors  the  law  gives  credit  to  what  they  do,  and 

therefore  there  must  always,  in  what  they  do,  be  cause  for  it ;  the  presumption 

of  law  is,  that  judges  and  jurors  do  nothing  maliciously,"  per  Eyre  Baron.    1 

T.  R.  503. 

[  18  ] 
P.  194. — "  Which  the  usual  course  of  judicial  proceeding  does  not  warrant,"  &c. 
In  the  case  R.  v.  Salisbury,  1  Ld.  Ray.  341.  it  was  held  by  Holt,  C.  J.  that  if 
a  man  prefer  a  scandalous  petition  to  the  House  of  Lords,  or  make  an  affidavit 
containing  scandal  against  J.  S.  in  B.  R.  he  cannot  justify  the  publication  of  this, 
but  it  will  be  an  offence  indictable,  because  it  tends  to  a  breach  of  the  peace. 

[  19  ] 
P.  231.—"  They  were  spoken  by  the  defendant  under  a  belief  of  the  fact,"  &c, 
But  the  opinion  of  the  defendant  that  the  plaintiff  was  guilty,  will  not  justify 
an  extra-judicial  charge.     Plunkett  v.  Powell,  Cro.  Car.  52. 

[  20  ] 

P.  264.— "Publication,"  &c. 
If  the  plaintiff  aver  that  the  hearers  understood  the  words  in  a  particular 
sense,  he  will  be  bound  to  prove  it  at  the  trial.    5  East,  470. 

[  21   ] 

P.  271.—"  The  statement  of  the  words  must  correspond  with  the  publication  to 
be  proved,"  &c. 
Bell  averred  that  Byrne  printed  and  published,  in  the  Morning  Post,  the  fol- 
lowing libel  concerning  the  plaintiff,  as  purporting  to  be  a  letter  written  from  A. 
to  R  O'Connor :  "  I  have  sold  all  my  property  to  B.,  yet  it  may  still  go  on  in 
my  name,  and  the  rents  are  to  be  transmitted  to  H.  Bell,  Esq.  Charter-house- 
square.  Mr.  Bell  (meaning  the  plaintiff)  has  been  for  some  time  past  confined 
in  England  on  a  charge  of  high-treason."  Upon  the  trial  it  appeared  that  the 
paragraph  in  question  had  been  published  by  the  defendant  in  his  newspaper  of 
the  15th  of  May,  1810,  and  that  it  purported  to  be  a  statement  of  a  speech  de- 
livered by  the  Attorney-general  for  Ireland  in  the  Irish  House  of  Commons  on 


590 

the  19th  of  Feb.  1799,  in  the  course  of  which  several  letters  were  read  by  him. 
The  defendant  objected  that  the  words,  "  Mr.  Bell  has  been  for  some  time  past 
confined  in  England  on  a  charge  of  high  treason,"  did  not  constitute  part  of  the 
letter  alleged  to  have  been  read  by  the  Attorney-general,  but  were  published  as 
mere  comment  by  him  after  reading  the  letter,  and  were  therefore  improperly 
described  in  the  declaration,  as  purporting  to  be  part  of  the  letter.  And  the 
Court  of  King's  Bench,  upon  a  motion  to  set  aside  the  verdict  for  the  plaintiff, 
and  enter  a  nonsuit,  were  of  opinion,  that  the  misdescription  was  fatal,  and  that 
the  defendant  should  have  been  described  as  professing  to  publish  a  speech  of  the 
Attorney-general  for  Ireland,  in  which  was  contained,  &c. 

[  22  ] 
P.  313. — "Description  of  special  character,"  kc. 
The  plaintiff  declared  as  proprietor,  editor,  and  publisher  of  a  certain  news- 
paper, he  proved,  that  be  was  the  proprietor  and  publisher,  but  not  the  editor, 
and  the  variance  was  considered  as  fatal.     Heriot  v.  Stuart.  1  Esp.  437. 

It  is  unnecessary  to  aver,  that  the  plaintiff  qualified  himself  to  act  in  the  cha- 
racter in  which  be  sues,  in  compliance  with  any  particular  statute.  See  Hart- 
ley t.  Herring,  8  T,  R.  131. 

[23  ] 

P.  326. — "  Declaration,  damage,"  &c. 

If  the  plaintiff  once  recover  he  cannot  afterwards  maintain  an  action  for  any 
special  damage  subsequently  resulting  from  the  same  words.  B.  N.  P.  7.  Ta- 
men  qu.    2  Mod.  151.  contra. 

Where  the  words  are  actionable,  special  damage,  though  averred,  need  not  be 
proved.     Cook  v.  Field.     3  Esp.  R.  133. 

[24  ] 

P.  327.—"  Defendant's  plea,"  &c 
A  plea  of  justification  will  sometimes  cure  a  defective  declaration.     The 
words  were,  "  He  is  forsworn,"  and  there  was  no  colloquium  to  connect  them 
with  a  judicial  oath,  but  the  plea  averred  them  to  have  been  spoken  in  reference 
to  a  judicial  oatb,  and  thereby  cured  the  delect.     Cro.  Car   238. 

[25  ] 

P.  341. — "  The  defendant  must  in  his  plea  charge  him  with  specific  instances," 

&c. 
A  defendant  is  not  at  liberty  to  charge  the  plaintiff  with  swindling,  unless  he 
can  prove  specific  instances,  1  T.  R.  748.  So  in  Holmes  v.  Catesby,  1  Taunt.  R. 
543,  where  the  libel  charged  the  plaintiff,  an  attorney,  with  general  misconduct, 
such  as  negligence,  falsehood,  prevarication,  &.c.  a  plea  repeating  the  same  ge- 
neral charges,  without  specifying  any  particular  instances  of  misconduct,  was 
upon  demurrer  held  to  be  insufficient. 


591 

[  26  ] 
I*.  bS9.— "  Liability  of  booksellers,"  Sic. 

In  the  case  of  R.  v.  Walter,  3  Esp.  21,  the  libel  was  contained  in  a  newspaper 
of  wbich  the  defendant  was  the  proprietor.  He  proved  that  he  resided  in  the 
country,  and  took  no  share  in  the  management  of  the  paper ;  but  Ld.  Kenyon, 
C.  J.  held,  that  the  proprietor  of  a  newspaper  is  answerable  criminally  as  well  as 
civilly  for  the  misconduct  of  his  servants  in  managing  the  paper,  and  observed 
that  this  was  the  opinion  of  Lord  Hale,  Justice  Powell,  and  Mr.  Justice  Foster. 

Upon  the  trial  of  an  information  for  publishing  a  BfiAitious  lihol,  evidence  was 
admitted,  that  the  servant,  in  the  defendant's  shop,  wore  a  cap  with  the  words 
"  liberty  and  equality"  upon  it.     R.  v.  Holt,  5  T.  R.  436. 

[   27  ] 

P.  393. — "  Evidence  of  malice,"  &c. 
So  in  Tate  v.  Humphreys,  2  Camp.  73.  in  an. action  for  words  of  perjury,  the 
plaintiff  was  permitted  to  give  in  evidence  a  bill  of  indictment  which  had  been 
subsequently  preferred  against  him  by  the  defendant.  See  also  Carr  v.  Hood, 
1  Camp.  354.  and  supra,  p.  639.  R.  v.  Ball,  1  Camp.  324.  But  in  the  case  of 
Finnerty  v.  Tipper,  2  Camp.  72.  Sir  J.  Mansfield,  C.  J.  held,  that  libels  pub- 
lished since  that  on  which  the  action  is  founded  are  not  admissible  in  evidence 
unless  they  refer  to  the  same  subject  matter. 

[  28  ] 
P.  402.— See  B.  N.  P.  14. 

[  29   ] 
P/405. — "  Having  referred  to,"  &c- 

The  defendant's  counsel  is  entitled  to  read  to  the  Jury  speculative  opinion* 
which  have  been  published,  and  which  relate  to  the  matter  in  question,  but  they 
cannot  be  read  to  prove  any  fact,  unless  afterwards  offered  in  evidence.  5 
Esp.  133. 

The  defendant,  under  an  indictment,  is  not  at  liberty  to  prove  that  other  per- 
sons before  that  time  had  published  similar  libels  without  being  prosecuted,  least 
a  person  should  be  deemed  guilty  of  having  published  a  libel  without  having  had 
an  opportunity  of  defending  himself.     5  T.  R.  436. 

[30  ] 
P.  412. — "  Evidence  for  the  defendant,"  &.c. 
The  defendant  may  prove  in  mitigation  of  damages,  though  not  in  bar  of  the 
action,  that  the  plaintiff  has  published  libels  against  him,  Finnerty  v.  Tipper,  2 
Camp.  77. 

[  31   ] 

P.  444. — St.  1  E.  6.  c.  1.     By  this  statute  the  justices  at  Sessions  are  au 

thorized  to  issue  a  writ  to  the  Bishop  of  the  diocess  to  attend  the  sessions,  either 


592 

in  person  or  by  his  deputy,  "  sufficienter  eruditus,"  to  inquire  into  the  offence 
committed  against  the  sacrament.  And,  by  the  same  statute,  the  defendant  is 
allowed  to  purge  or  try  his  innocency,  by  witnesses  equal  in  number  and  ho- 
nesty to  those  who  depose  against  him. 

[  32  ] 
P.  447. — "  Publications  subversive  of  morality,"  &c. 
Within  this  division  fall  the  offences  of  profane  cursing  and  swearing,  but  since 
the  legal  prohibitions  relating  to  these  are  well  known,  they  have  been  omitted, 
and  the  reader  is  referred  to  Bum's  Justice,  tit.  Swearing. 

[  33  ] 
P.  476.—"  No  indictment  lies  for  words  spoken  either  of  or  to  inferior  magis- 
trates, unless,"  &c. 
See  R.  v.  Wrightson,  Salk.  697.     Ld.  Ray.  153.  1030.     Holt.  It.  354.  364. 
5  Mod.  203.     The  Queen  v.  Nun.     10  Mod.  186.     11  Mod.  166.     12  Mod.  98. 
514.     R.  v.  Walden.  414. 

Lord  Holt,  G.  J.  held,  that  though  an  insolent  witness  might  be  committed  by 
the  Court  for  a  contempt,  he  could  not  be  indicted.  7  Mod.  28.  But  see  Str, 
420. 

[  34  ] 

P.  477.— See  also  the  case  of  R.  v.  Smith,  who  instructed  Stephen  Colledge 
to  say,  on  his  trial  at  Oxford,  that  "  Government  might  as  well  have  hanged  him 
at  Tyburn,  as  he  came  by,  as  brought  him  thither  to  murder  him  with  a  little 
more  formality."    Skinn-  124. 

[35  ] 

P.  486.—"  By  St.  23  Eliz.  c.  2.  it  was  made  felony  to  cast  the  nativity  of  the 
Queen.     The  taking  a  portrait  of  her  was  also  forbidden  by  proclamation." 

[  36  ] 

P.  491. — "  Unless  they  amount  to  a  direct  breach  of  the  peace,  as  by  a  challenge 

to  fight,"  &c. 

The  terms  liar  and  rogue  are  not  indictable  when  spoken,  because  (as  is  said) 
they  do  not  immediately  tend  to  a  breach  of  the  peace,  4.  Ins.  181. 

Notwithstanding  this  authority,  it  would  noi  be  easy  to  select  two  other  words 
in  the  language  which  do  so  efficaciously  tend  to  a  breach  of  the  peace,  or  which 
have,  in  fact,  been  so  frequently  the  forerunners  of  blows,  as  the  two  alluded  to. 
The  reason  for  tolerating  such  oral  but  tempting  incitements  to  violence,  seems 
to  be  the  well-grounded  apprehension,  (hat,  to  subject  the  speakers  of  abusive 
words  to  punishment,  would  be  to  cherish  a  spirit  of  petty  litigation,  the  incon- 
venience of  which  would  outweigh  the  mischief  intended  to  be  remedied.  The 
experiment  was  made  with  respect  to  actions  (vid.  p.  22,)  but  the  Judges  were 
quickly  induced  to  abandon  the  rule  they  had  laid  down,  which  does  not  seem 
ever  to  have  been  extended  in  the  same  latitude  to  the  criminal  offence  ;    and 


Lord  Hoit  observed,  that  to  encourage  indictments  for  words  would  render  tin  m 
as  uncertain  as  actions  for  words  are.     See  p.  548. 

By  St.  9  Ann.  c.  14.  1.  8.  in  case  any  person  shall  challenge  another,  or  pro- 
voke him  to  fight,  on  account  of  money  won  at  play,  he  shall,  upon  conviction, 
forfeit  all  his  goods  and  chattels  and  personal  estate,  whatsoever,  and  shall  suffer 
imprisonment  for  two  years.     See  Haw-  P.  C.  b.  1.  c.  72.  s.  40. 

[  37  ] 
P.  494.— "  On  the  memory  of  one  dead,''  free 
See  also  R.  v.  Walter,  3  Esp.  21. 

[38  ] 
P.  495 — "  Upon  the  character  of  any  particular  individual." 
An  indictment  for  a  libel  on  several  persons,  to  the  jurors  unknown,  is  bad. 
R.  v.  Orme  (or  Almc)  and  Nut-  Ld.  Ray.  436.  3.     Salk.  224. 

But  where  a  libel  reflects  upon  one  of  a  specific  body,  without  naming  him, 
the  publisher  may  be  indicted  for  a  libel  upon  the  whole.  R-  v.  Jenour,  7  Mod. 
400. 

And  an  information  has  been  granted  for  charging  one  of  several  Trustees 
With  a  breach  of  private  trust.     R.  v.  Griffin  and  others.     Rep.  Temp.  Haw-  30. 

[  39] 
P.  506 — "The  keeping  of  such  libels  in  possession,"  &c. 
Where  a  libel  is  found  in  a  man's  own  custody,  but  exposed,  as  on  a  shelf  in 
a  bookseller's  shop,  the  owner  is  guilty  cf  a  publication.     12  Vin.  Ab-  229-      1 
Read-  St.  L.  155. 

[  ™  1 
P.  538. — "  Application  for  an  information, "'  &c. 
When  the  same  libel  reflects  on  several,  it  is  not  necessary  that  all  should  join 
in  the  application,  or  that  the  names  of  all  should  be  specitied,  since  the  con- 
viction upon  one  information  would  be  a  bar  to  any  other,  it  being  one  single 
offence,  though  every  person  injured  would  severally  be  entitled  to  maintain  an 
action.     R.  v.  Griffin,  Rep.  Temp.  Hardwickc,  39. 

[  41  ] 

P.  538. — "  The  applicant  must  waive  his  right  of  action,"  &c. 
The  party  may  be  put  to  his  election  before  the  information  is  granted  ;  nftei 
the  granting  of  an  information,  it  is  of  course  to  stay  the  proceedings  in  ai 
tion  for  the  same  cause.    2  T.  R.  198. 

[  42  ] 
P.  540. — "  Upon  a  warrant  from  a  Secretary  of  Stale,"  &c- 
In  the  case  of  the  King  v.  Kendal  and  Roe,  Salk.  317.  the  Court  held,  that 
Secretaries  of  State  might  commit  as  conservators  of  toe  peace  ai  Common  I  ■<<• 

75 


594 

and  that  the  commitment  to  a  messenger  was  good,  and  a  lawful  custody  ;  for 
they  would  intend  it  only  to  carry  him  to  jail.  But  the  party,  in  that  case,  was 
committed  on  a  charge  of  treason. 

[  43  ] 
P.  541. — "But  by  the  resolutions  of  both  Houses  of  Parliament,"  &c. 
Journal  of  the  Lords,  Die  Martis,  29  Novembris,  1763.  The  3d  resolution  of 
the  House  of  Commons  was  read  ;  Resolved  by  the  Commons  in  Parliament 
assembled,  tl^at  privilege  of  parliament  does  not  extend  to  the  case  of  writing 
and  publishing  seditious  libels,  nor  ought  to  be  allowed  to  obstruct  the  ordinary 
course  of  the  laws  in  the  speedy  and  effectual  prosecution  of  so  heinous  and  dan- 
gerous an  offence  ;  and  it  being  moved  to  agree  with  the  Commons  in  the  said 
resolution,  it  was,  after  a  long  debate,  resolved  in  the  affirmative. 

[44  ] 
P.  542. — "The  single  point  decided  was,"  &c. 
But  Lord  Mansfield,  C.  J.  expressed  himself  in  strong  terms  against  the  le- 
gality of  general  warrants,  and  cited  the  opinions  of  Wilmot,  Yates,  and  Aston, 
Justices,  in  support  of  his  own.     11  St.  Tr.  312. 

[  45  ] 
P.  549. — "  Form  of  information  or  indictment." 

Where  two  persons  concur  in  the  same  illegal  act,  they  may  be  included  in  the 
same  indictment. 

In  the  case  of  R.  v.  Benfield  and  Sanders,  2  Burr.  980.  it  was  held,  that  an 
information  lay  against  two  for  singing  a  libellous  song  on  A.  and  B.,  which  first 
abused  A.  and  then  B.  And  it  was  said,  that  had  the  defendants  sung  separate 
stanzas,  the  one  reflecting  on  A.  and  the  other  on  B.,  the  offence  would  still 
have  been  entire. 

A  libel  upon  one  of  a  body  of  persons  without  naming  him,  is  a  libel  upon  the 
whole,  and  may  be  so  described.  The  defendant  published  the  following  adver- 
tisement in  a  newspaper:  "Whereas  an  East  India  Director  has  raised  the 
price  of  green  tea  to  an  extravagant  rate,  the  same  gentleman  being  also  con- 
cerned with  the  Swedish  East  India  Company  ;  the  English  proprietors  hope  he 
will  find  some  measure  to  raise  bohea  tea  in  Sweden,  that  the  Company  may 
have  an  opportunity  to  ship  off  some  of  rffeir  b3d  bohea  tea,  instead  of  having  it 
burnt  as  usual."  Upon  motion  for  an  information,  Lee,  C.  J.  observed. 
"Where  a  paper  is  published,  equally  reflecting  upon  a  number  of  people,  it  re- 
flects upon  all,  and  readers,  according  to  their  different  opinions,  may  apply  if 
so."    R.  v.  Jenour,  7  Mod.  400. 


VIM- 


INDEX 


A. 
ABILITY  : 

charging  the  want  of,  p.  116. 
ABUSE  : 

mere  words  of  not  actionable,  p.  31,  SO". 

nor  indictable,  p.  491. 
ACTION  : 

for  slander,  grounds  of,  p.  13,  24,  569. 
ADJECTIVE  : 

words,  p.  63,  64,  68. 
AFFIDAVITS  : 

in  aggravation,  p.  574. 

in  mitigation,  p.  575. 

order  of  reading,  p.  577. 

see  attachment,  information,  ^e. 
AGGRAVATION : 

evidence  in,  p.  402. 

affidavits  in,  p.  574. 
AMBIGUITY  : 

different  kinds  of,  p.  44. 

explained  by  circumstances,  p.  G9, 
APPLICATION  : 

of  the  words  to  the  plaintiff,  how  collected,  p.  9 •!.  Sec. 

verdict,  how  far  conclusive,  p.  95. 

Where  a  nickname  is  used,  p.  95. 
ARREST  : 

of  judgment.     See  judgment. 
ATTACHMENT : 

what,  p.  519,  520. 

whence  it  issues,  p.  520. 

for  what  offences,  p.  519,  520. 

on  what  evidence  granted,  p.  522. 

when  granted  in  the  first  instance,  p.  520,  522,  523. 

proceedings  upon,  p.  524. 

in  default  of  rocognizance  the  party  is  committed,  p.  523. 

interrogatories,  p.  523. 

time  allowed  for  exhibiting,  p.  523. 

party  may  purge  himself  upon  oath,  p.  524. 

in  what  cases  allowed  to  confess  the  conlempt  in  the  first  in- 
stance, p.  523. 
ATTEMPT : 

to  commit  an  illegal  act,  charge  of,  when  actionable,  p.  30, 
36,37,38,  88,  &c. 

when  an  indictable  offence,  p.  491.     See  Solicitation. 


59$  INDEX. 

ATTORNEY  : 

words  of,  p.  112,  115,  116. 

proof  of  plaintiff's  being,  p.  386. 
AVERMENT  : 

of  extrinsic  circumstances,  when  necessary,  p.  292,  309. 

introduction  of  useless  ones  prejudicial,  p.  309. 

and  sometimes  fatal,  p.  310. 

Sec  colloquium,  declaration,  innuendo,  &c. 

B. 

BAIL  : 

not  requix-able  in  common  actions  for  slander,  p.  243. 

has  been  denied  in  scan.  mag.  p.  243. 

affidavit  necessary,  p.  244. 
BANKRUPTCY: 

words  imputing,  p.  117,  341. 
BARRETRY : 

charge  of,  p.  38. 
BARRISTER: 

words  of,  p.  112. 

how  described,  p.  3t3. 

when  he  may  refuse  to  give  evidence,  p.  412. 

see  Counsellor. 
BASTARDY : 

words  of,  p.  1 22. 
BAWDY-HOUSE: 

imputation  of  keeping,  p.  36. 
BISHOP  : 

words  of,  p.  111. 

writ  to  by  justices  at  sessions,  p.  COO. 
BLASPHEMY  : 

See  Religion. 
BOOK  OF  COMMON  PRAYER  : 

words  in  derogation  of,  p.  420. 
BOOKSELLERS : 

liability  of,  p.  370,  591. 
BRANDED : 

charge  of  having  been,  p.  84, 
BRIBERY: 

charge  of,  p.  35. 

an  offence  at  common  law,  p.  35. 


CARICATURE:  p.  142. 

injunction  to  restrain  exhibition  of,  p.  143. 

liability  of  the  publisher  of,  ib. 
CARPENTER: 

words  concerning,  p.  1 18. 


IM)£X. 


593 


CERTAINTY  : 

degree  of,  formerly  required,  p.  69,  70. 

where  the  words  impute  crime,  p.  42. 
CHARACTER : 

caution  to  be  observed  in  the  description  of,  p.  312,  590. 

title  to,  need  not  be  pleaded,  p.  313. 
..    averment  of,  p.  313,  399. 

when  laid  in  aggravation,  p.  326 
CHATTEL: 

slander  of,  p.  119. 
CHEATING  : 

words  charging,  p.  75. 
CHURCHWARDEN  : 

words  of,  p.  119. 
CLAIM  OF  TITLE  : 

how  used  in  defence,  p.  338. 
CLERGYMEN  : 

words  concerning,  p.  93. 

delivered  by  in  preaching,  p.  205. 
CLIPPING  MONEY  : 

charge  of,  p.  81. 
COINING  : 

charge  of,  p.  19. 
COLLECTING  : 

of  libels,  p.  513.     See  Possession. 
COLLOQUIUM : 

ancient  practice  as  to,  p.  300. 

nature  and  use  of  the  averment,  p.  290,301. 

the  want  of  not  supplied  by  an  innuendo,  p.  302. 

must  extend  to  the  whole  prefatory  matter,  p.  293. 

averment  that  the  words  were  spoken  de  querente. 

when  necessary,  p.  290. 

words  spoken  to  the  plaintiff,  p.  284. 

where  the  person  is  pointed  out  by  the  words,  p.  285. 

where  they  can  apply  to  one  only,  p.  285. 

when  they  may  be  applied  to  several,  p.  287. 

where  the  plaintiff's  name  is  mentioned,  p.  289. 

where  the  words  are  actionable  from  extrinsic  circumstances, 
p.  290. 

in  what  cases  de  querente  sufficient  without   a  colloquium. 
p.  291. 
COMMITMENT  : 

summary,  when  inflicted,  p.  519. 
COMMUNICATION': 

law  of  in  this  country  contains  little  of  legislative  enactment, 
p.  580. 
COMPARISON  : 

words  of,  p.  58.  60. 
CONFESSION : 

effect  of,  p.  572. 


598  INDEX. 

CONFIDENTIAL  : 

communication  privileged,  p.  21u 
CONSTABLE : 

proof  of  party  being,  p.  387. 
CONSTITUTION  : 

libels  relating  to,  p.  452,  453,  454. 

descent  of  the  crown,  p.  452. 

settlement  of  the  crown,  p.  455. 

revolution,  p.  455. 

king's  title,  p.  452. 

nature  and  extent  of  the  offence,  p.  456. 
CONSTRUCTION  : 

rules  of,  p.  44,  47. 

words  to  be  understood  in  their  common  acceptation,  p.  49. 

maybe  explained  by  circumstances,  p.  87. 

by  context,  p.  86,  87. 

by  the  cause  or  occasion  of  speaking  them,  p.  87. 

by  jurors,  p.  52. 

bvthe  court  after  verdict,  p.  50,  &c.  416. 
CONTEXT : 

may  explain  actionable  words,  p.  86. 
CONTINUANCE  IN  OFFICE,  &c. 

when  intended,  p.  314. 
CONVICTION  : 

words  charging,  p.  83. 
CORRUPTION  : 

charge  of,  p.  34,  35. 

in  former  situation,  p.  105. 

in  public  trust,  p.  35. 

in  office,  p.  102. 
COSTS: 

St.  21  J.  1.  c.  16.  p.  420. 

does  not  extend  to  scan.  mag.  p.  420. 

nor  to  actions  founded  on  special  damage,  p.  420. 

nor  to  cases  of  libel,  p.  420. 

but  applies  where  actionable  words  produce  special  damage, 
p.  421. 

inconvenience  of  this  rule,  p.  421. 

actionable  words  joined  in  declaration  with  a  distinct  injury, 
p.  421. 

special  damage  laid  referring  to  all  the  counts,  p.  422. 

damages  found  under  a  writ  of  inquiry,  p.  422. 

certificate  of  judge  under  22  and  23  C.  2.  c.9.  p.  422. 

justification  does  not  entitle  to  full  costs,  p.  423. 
COUNSELLOR  : 

words  spoken  by,  when  actionable,  p.  207,  209. 
COURT : 

Earl  Marshals,  before  whom  held,  p.  443. 

of  honour,  attempt  by  to  hold  plea  of  words,  p.  432, 


INDEX. 


599 


inferior  encroachments  by,  how  restrained,  p.  433. 

contempts  of.     See  Attachment,  Justice,  Judges,  &c 
COZENING  : 

charge  of,  p.  75. 
CREDIT: 

words  affecting,  p.  1 10 — 117. 
CRIME  : 

action  for  imputing  the  commission  of,  p.  12. 

words  imputing,  why  actionable  without  special  damage,  p.  69. 

place  the  party  in  jeopardy,  p.  17. 

disgrace  him  in  society,  p.  17,  18. 

ancient  rule,  p.  586. 

words  imputing,  actionable,  though  not  endangering  the  party 
in  law,  p.  18,  19,586. 

after  pardon  for  the  offence,  p.  19. 

where  actionable,  must  impute  a  temporal  offence,  p.  30,  33. 

punishable  in  the  temporal  courts,  p.  30,  41,  42. 

penalty  merely  pecuniary,  p.  42. 

general  rule,  p.  41,  42. 

certainty  requisite,  p.  43,  44. 

1.  must  impute  an  act,  p.  57,  58,  58G. 

by  what  words  an  act  may  be  imputed,  p.  58,  &c. 

2.  of  a  criminal  nature,  p.  58. 
criminal  quality  how  collected,  p.  68. 

3.  to  the  plaintiff,  p.  58. 

application  of  the  charge  how  collected,  p.  93. 
propriety  of  limiting  such  actions,  p.  42. 
CRITICISM  : 

how  far  privileged,  p.  232. 

liberty  of  does  not  extend  to  personal  reflections,  p.  23a,  2ot>. 
nor  to  misrepresentations  of  facts,  p.  235. 
CRITIQUE  : 

upon  a  newspaper,  p.  258. 
cursing  and  swearing,  p.  592. 

D. 

DAMAGE : 

nature  of  in  case  of  slander,  p.  12. 

when  presumed,  p.  17. 

advantages  of  this  presumption,  p.  15,  581. 

special,  what  amounts  to,  p.  157. 

prevention  of  sale,  p.  323. 

expenses  of  civil  suit,  p.  159,  160. 

vhe  bringing  the  plaintiff's  title  into  litigation,  p.  1     I 

hindrance  from  preferment,  p.  160. 

loss  of  hospitable  entertainment,  p.  169, 

loss  of  marriage,  p.  161,  162,  587. 

loss  of  voluntary  donation-,  p.  IC 

incc  of  customers,  p.  I 


UOO  INDEX. 

expense  of  justification  from  extra-judicial  charge,  p.  157, 158. 

mere  apprehensions  of  loss  insufficient,  p.  167. 

female  charged  with  incontinence  required  to  prove  special 

damage,  p.  164. 
insufficiency  of  the  reasons  for  this  rule,  p.  165. 
special  damage,  how  connected  with  the  words,  p.  167. 
must  be  the  natural  and  immediate  consequence,  p.  168. 
non-performance  of  contract  not  a  special  damage,  p.  169. 
special  damage  subsequently  resulting  from  the  same  words, 

p.  170,  592. 
where   the   words    are    actionable    need    not  be   proved. 

p.  311,592. 
statement  of  when  it  is  a  mere  presumption  of  law,  p.  321 . 
special  damage  must  be  stated,  p.  322,  402. 
how  pleaded,  p.  322. 
when  generally,  p.  324. 
actionable  words  are  spoken  within  a  private  jurisdiction, 

p.  324. 
the  want  of  special  damage  may  be  pleaded,  p.  337. 
damages  not  in  the  nature  of  punishment,  p.  162. 
nor  awarded  with  a  view  to  reformation,  p.  163. 
DEAD  : 

person,  libel  on  the  memory  of,  p.  493,  593. 
DECLARATION  : 

in  case  of  slander  or  libel,  p.  263. 
in  what  it  consists,  p.  263. 
of  the  venue,  p.  245. 

parties,  p.  250. 
inducement  of  good' character,  p.  265. 

not  traversable,  p.  264. 

sometimes  improper,  p.  264. 

averments,  p.  263. 

of  publication,  p.  263. 
statement  of  the  words,  p.  267.    See  Statement,  \  ariance,  &c; 
colloquium,  p.  284.     See  Colloquium, 
innuendo,  p. 295.     See  Innuendo, 
averments  of  extrinsic  facts,  p.  304. 

when  necessary,  p.  304. 
advantages  of  a  technical  statement,  p.  302. 
DEPOSITIONS  : 

before  magistrates,  when  evidence,  pr  572. 
DEFENDANTS : . 

joinder  of  in. a  declaration,  p.  261 . 
in  an  indictment,  p.  592. 


E. 


EFFIGY  : 

burning  in.. 


EMPLOYMENT  : 

words  concerning  plaintiff's,  p.  Ill,  1 12* 

nature  of,  p.  114. 

degree  of  prejudice,  p.  114. 
EVIDENCE: 

how  far  it  must  correspond  with  the  declaration,  p.  -W.k 

of  publication  necessary  before  the  libel  is  read,  p.35l.  &ee 
Handwriting,  Publication,  Character,  &C.&C 
EXCLAMATION  : 

words  of,  p.  58,  Gl. 
EXCOMMUNICATION  ; 

imputation  of,  p.  25. 

disabilities  resulting  from,  p.  27. 
EXCULPATORY : 

averment,  p.  317. 

formerly  required,  p.  317,318. 

affidavits.     See  Information. 
EXTORTION  : 

charge  of,  p.  106. 

F. 

FALSE  : 

claim,  when  actionable,  p.  20o,  200. 
rumours,  p.  485.     See  Forestalment. 
witness,  liability  of,  p.  186. 
FELONY : 

formed^  'consisted   in   intent,  coupled  with  an   overt   act. 
p.  86,87. 
FINDER  OF  LIBEL  i 

doctrine  cf  civil  law  as  to,  p.  507,  508. 

whether  criminal  for  mere  keeping  in  possession,  p.  506. 
FOREIGN  : 

language,  libel  written  in,  p.  85,  308. 

averments  necessary,  p.  86,  308. 

state,  libel  against,  p.  482. 
FORESTALMENT: 

raising  price  of  provisions  by  false  rumours,  p.  4b/,  U  • 

FORGERY- 

charge  of,  p.  32,48,74. 
FORNICATION  : 

charge  of,  p.  '25. 
FORSWEARING  : 

words  imputing,  p.  21,  47,  77,  78, 

averments  necessary,  p.  340,  389 
FRAUD: 

charge  of  secreting  a  will  p.  21. 
]  REE  DlSdXJSSIOI 


00^  INDEX. 

a  restraint  upon  the  vicious,  p.  2, 

abuse  of,  p.  4. 

press,  advantages  of,  p.  5,  6. 

distinguished  from  an  open  press,  p.  6. 
FRIENDLY  COMMUNICATIONS  : 
privileged,  p.  221. 

G. 

GAZETTE : 

admissible  in  evidence,  p.  572. 
GENERAL : 

issue,  evidence  under. 

in  civil  action,  p.  332. 
in  case  of  indictment,  p.  549. 
warrants,  illegality  of,  p.  544,  591. 
GOVERNMENT: 

publications  against,  p.  469. 

considered  as  contempts  against  the  king,  p.  469. 

privilege  of  freemen  to  represent  abuses  and  grievances, 

p.  470. 
libel  on  government, 

in  what  the  offence  consists,  p.  471. 
malice  essential  to  it,  p.  471. 
instances,  p.  472,  &c. 
the  discussing  public  measures  will  not  justify  an  attack  on 
private  character,  p.  475. 
GUILTY  : 

force  of  the  word,  p.  83. 

H. 
HANDWRITING  : 

effect  of,  proof  of,  p.  352. 

prima  facie  proof  of  publication,  p.  353. 

proof  of,  by  comparison,  not  allowed,  p.  o5ii,  k.c. 

opinions  of  Lord  Holt,  Mr.  Justice  Yates,  Lord  Kenyon,  Mr. 

J.  Buller,  Baron  Hotham. 
whether  comparison  is  admissible  as  confirming  evidence, 

p.  359. 
persons  of  skill  may  prove  a  particular  writing  to  be  in  a 

feigned  hand,  p.  365. 
witness  competent  who  has  seen  another  write,  though  but 

once,  p. 368. 
who  competent  to  prove,  p.  367. 
HEARSAY: 

when  a  justification,  p.  213,  214. 

in  scan.  mag.  p.  213. 

reporter  must  give  a  cause  of  action,  p.  214,  215. 

must  state  the  very  words,  p.  217. 

and  not  merely  Iheir  effect,  p.  217. 


INDEX.  <J03 

ound  of  the  justification,  p.  219., 

no  justification' when  spoken  against  knowledge,  p.  219,220. 

whether  special  plea  necessary,  p.  -; 
HERMAPHRODITE: 

charge  of  being,  p.  121. 
HUSBANDMAN  : 

words  of,  p.  1 19. 

I. 

ILLEGAL  ACT  : 

the  inciting  to,  indictable,  p.  490. 

profits,  plaintiff  cannot  recover  for  their  diminution,  p.  393. 
IMPERFECTION  : 

of  laws  relating  to  slander,  p.  1,2. 
INCITEMENT  : 

to  illegal  act  indictable,  p.  491. 

distinction  between  oral  and  written  defamation,  p.  491 . 
INCONTINENCE: 

words  charging,  when  applied  to  females,  p.  1C1,  && 

Lord  Holt's  opinion,  p.  16G. 

desire  of  judges  to  consider  them  actionable,  p.  164, 

ground  of  former  decisions,  p.  163. 
INCONVENIENCE  : 

publication  producing,  to  society,  p.  452. 
1ND1CTMEMT  : 

form  and  requisites  of,  p.  569,  591. 

the  offence  local,  p.  518. 

need  not  be  laid  vi  et  armis,  p.  54o. 

averments,  falso  malitiose,  <kc.  p.  548. 

averment  of  publication,  &c.  p.  505,  548. 

vide  declaration,  plea,  &c. 
INFECTIOUS  DISORDER  : 

words  imputing,  p.  97. 

extent  of  the  action,  p.  98. 

writ  de  leproso  amovendo,  p.  98. 
INFORMATION  : 

proceeding  by,  p.  529. 

antiquity  of,  p.  529. 

different  kinds  of,  p.  530,  590. 

when  filed  by  the  attorney -general,  p.  529. 

on  the  application  of  an  individual,  p.  529. 

former  practice  as  to  them,  p.  522. 

how  altered  by  statute,  p.  522. 

instances  in  which  they  have  been  granted,  p.  522. 

for  reflections  on  magistrates,  p.  522,  523. 
on  judges,  p.  523. 
on  peers,  p.  524. 
on  particular  bodies,  p.  524. 
on  trading  companies,  p.  526. 


604  INDEX. 

on  private  persons,  p.  524,  526,  527,  528. 
Rules  prescribed  by  the  Court. 

applicant  must  waive  his  action,  p.  529. 
application  must  be  recent,  p.  529. 

must  be  accompanied  with  an  affidavit, 
the  libel  published,  p.  530. 
its  application  to  the  complainant,  p.  531. 
its  publication  by  the  party  complained  of,  p.  531. 
denying  the  charge,  p.  53 i. 
exculpatory  affidavit,  in  what  instances  dispensed  with, 

p.  531,532. 
confirmatory  affidavits,  p.  532. 
must  not  introduce  new  matter,  p.  532. 
title  of  affidavits,  p.  530. 
defendant's  affidavits  contradictory  of  those  by  the  relator, 

p.  533. 
aver  the  truth  of  the  libel,  p.  533. 

costs  on  discharge  of  rule  for  criminal  information,  p.  533. 
on  the  acquittal  of  the  defendant,  p.  534. 
certificate  in  such  case,  p.  534. 
INNKEEPER : 

words  of,  p.  119. 
INNOCENCE  : 

presumption  of  law  in  favour  of,  p.  391. 
when  party  must  prove  a  negative,  p.  S94. 
INNUENDO : 

nature  and  office  of,  p.  290,  292,300,  302. 
cannot  introduce  new  matter,  p.  291,  292. 
when  necessary,  p.  291. 
effect  of,  when  it  enlarges  the  sense,  p.  292. 
in  what  cases  harmless  though  introducing  new  matter,  p.  295. 
when  repugnant  or  insensible  maybe  rejected, p.  297. 
need  not  state  an  inference  of  law,  p.  297. 
but  such  an  inference  if  stated  will  not  vitiate,  p.  299. 
innuendo  in  one  count  maybe  supported  by  a  colloquium  in  a 
preceding  one,  p.  299. 
INTEGRITY  : 

words  reflecting  on,  p.  110. 
INTENTION  : 

words  charging,  p.  22,  68,  92, 184,  586. 
INTEREST  : 

claim  of  when  a  defence,  p.  15,  o2. 
INTERROGATION: 

words  of,  p.  61. 
IRONICAL: 

words  may  be  actionable,  p.  58,  61,  65. 


JOBBER : 

in  the  funds,  word5  of.  p.  109 


INDEX.  605 

JOINDER  : 

of  different  injuries  in  declaring,  p.  326. 
JUDGES : 

not  liable  for  any  publication  in  discharging  their  ofike,  p.  1 83, 
500.     See  Office,  &c. 
JURORS: 

duty  of  in  construing  words,  p.  52,  54, 55. 
JURY: 

presentment  by  no  libel,  p.  184. 

province  of,  on  trials  for  libel,  p.  551. 

formerly  doubted,  p.  551. 

history  of  the  question,  p.  553. 

Perm  and  Mead's  case,  p.  553. 

Ld.  C.  J.  Vaughan's  opinion,  p.  553. 

Nathaniel  Thompson's  case,  p.  555 

Lord  Holt's  charge,  p.  555. 

seven  bishops,  case  of,  p.  555. 

Tutchin's  case,  p.  557. 

Clerk's  case,  p.  558. 

Woodfall's  case,  p.  559. 

Dean  of  St.  Asaph's  case,  p.  56  i. 

opinions  of  L.  C.J.  Raymond,  Lee,  Rider,  Mansfield,  Kenyon, 
and  Mr.  J.  Buller,  p.  559. 

doubts  removed  by  the  legislature,  p.  560. 
JUSTICE  : 

administration  of,  libels  relating  to  the,  p.  475, 591. 
JUSTICES  OF  THE  PEACE  : 

words  of,  p.  101,102. 

imputing  evil  principles,  p.  111. 

want  of  integrity,  p.  110. 

contempts  relating  to,  p.  476,  526,  r*°! . 

how  punished,  p.  476,  526. 
JUSTIFICATION  : 

in  civil  action. 

truth  of  the  charge,  p.  175.     See  Flea,  Truth,  .kc. 

why  allowed,  p.  175. 

publication  made  in  the  course  of  parliamentary  proceedings, 
p.  182. 

judicial  proceedings,]).  183. 

report  of  parliamentary  proceedings,  p.  195. 
•    judicial  proceedings,  p.  195. 

publication  made  by  person  claiming  an  ffiite 

having  colourable  claim  to  land,  p.  204. 

extent  of  the  privilege,  p.  205. 

as  a  professional  advocate,  p.  206. 

as  an  attorney,  p.  206. 

by  a  clergyman  in  preaching,  p.  208. 

words  spoken  in  confidence,  p.  209. 

publication  made  upon  hearsay,  by  party  giving  the  plaintiff  a 
ground  of  action,  p.  21 : 3.    See  He- 


<30t>  INDEX. 

publication  made  in  the  course  of  performing  a  public  or  a 

private  duty,  p.  223. 
plea  of,  must  confess  the  words,  p.  339. 
need  not  traverse  the  epithets  or  innuendos,  p.  340. 
when  the  place  of  speaking  is  traversable,  p.  340. 

K. 

KING  : 

publication  against  him,  p.  457. 

under  st.  36  G.  3.  p.  469. 

included  in  st.  3  Ed.  I.e.  34,  but  not  within  2  R.  2  st.  1.  c.  5. 

contempt  against,  p.  459,  &c. 
KILLING  : 

another  charge  of,  p.  51, 
KNOWLEDGE : 

words  reflecting  on,  p.  110. 

of  party  spreading  a  false  report,  how  taken  advantage  of, 
p.  319. 

the  fact  of  not  traversable,  p.  320. 

reason  of  this,  p.  320. 


LEPROSY : 

imputation  of,  p.  98. 
LIBEL  : 

different  kinds  of,  p.  1  10. 
in  writing,  p.  140. 

without  writing — by  pictures,  p.  140,  14-. 
signs,  p.  140. 
processions,  p.  144. 
grounds  of  the  action  for,  p.  126,  140. 
distinction  between  oral  and  written  slander,  p.  126. 
reasons  for  unsatisfactory,  p.  127,  587. 
special  damage  need  not  be  proved, 
in  case  of  caricature,  p.  141. 
author  of  criminally  as  well  as  civilly  responsible,  where  the 

libel  contains  personal  reflections,  p.  131,  144. 
an  indictment  lies  where  an  action  is  maintainable,  p.  131, 
on  an  individual,  why  a  public  offence,  p.  491,  493. 
the  degree  of  personal  discredit  immaterial,  p.  492. 
indictment  lies  for  libel   on  the  memory  of  one  deceased, 

p.  494. 
for  a  libel  not  reflecting  on  any  particular  individual,  p.  492. 
for  a  libel  on  a  body  of  persons;  p.  492,  595,  596. 
see  Information,  &c. 

does  not  amount  to  a  breach  of  the  peace,  p.  524. 
but  rests  in  tendency,  p.  524. 


INDEX.  <)07 

tendency  whether  a  question  of  law  or  fact,  p.  552. 

essence  of  a  libel,  in  what  it  consists,  p.  552. 

charge  of  having  written  one  actionable,  p.  36. 

when  parol  evidence  may  be  given  of  its  contents,  p.  383. 

contained  in  unstamped  newspaper  may  be  given  in  evidence, 
p.  383. 
LIBELLER : 

not  civilly  responsible  without  a  publication,  p.  264. 

and  (semble)  not  criminally  responsible  without  a  publication, 
p.  506. 
LIBERTY : 

of  the  press,  in  what  it  consists,  p.  3. 

how  secured  by  the  laws  of  England,  p.  583. 

excellence  of  the  mode  in  which  the  guilt  of  a  libeller  is  as- 
certained, p.  583. 
LIMITATION  : 

of  actions  for  words,  p.  347. 

mode  of  computing  in  different  actions,  p.  347. 

plea  of  the  statute,  p.  347. 

of  suits  in  the  spiritual  court,  p.  431. 
LIVELIHOOD : 

words  affecting  the  means  of,  p.  106. 
LOSS: 

nature  of  to  ground  an  action  upon,  p.  9 

M. 

MAGISTRATES. 

contempts  against.     See  Justices 
MAINSWORN  :• 

charge  of  being,  p.  85. 
MAINTENANCE  : 

words  charging,  p.  38. 
MALA: 

prohibita :  p.  31. 
MALICE : 

ex  malitia,  legal  import  of  the  words,  p.  3 19. 

distinction  between  the  legal  and  the  moral  meaning  of  the 
term,  p.  172. 

is  essential  to  civil  responsibility,  p.  208,  237,  240. 

is  either  express  or  implied,  p.  206. 

presumption  of  is  1.  conclusive  in  favour  of  the  defendant. 
p.  173. 

2.  prima  facie  in  favour  of  the  defendant, 

p.  201. 

3.  prima  facie  against  the  defendant,  p.  241. 
is  immaterial  where  the  imputation  is  true,  p.  173 


608  INDEX. 

MALICE  : 

where  the  publication  is  made  in  the  course  of  parliamentary 

or  judicial  proceeding,  p.  173. 
where  such  proceedings  are  faithfully  reported,  p.  173. 
where  the  publication  is  procured  by  artifice,  p.  169,  588. 
the  presumption  is  in  favour  of  the  defendant  where  he  claims 

an  interest,  p.  201. 
gives  the  plaintiff  a  ground  of  action  against  another,  p.  213. 
or  acts  in  the  discharge  of  any  public  or  private  duty,  p.  223. 
the  presumption  is  against  the  defendant  where  his  publication 

is  detrimental  and  motive  unexplained,  p.  240. 
may  consist  in  a  wanton  disregard  of  the  interests  of  others, 

?P^|f&ru  essential  to  criminal  liability,  p.  491,  495,581. 

against  society  may  consist  in  a  wanton  inattention  to  its  in- 
terests, p.  499. 

but  the  presumption  may  be  rebutted  by  showing  that  the  de- 
fendant had  a  legitimate  object,  p.  499. 

averment  of  in  a  declaration,  p.  316. 
in  an  indictment,  p.  317* 

evidence  of,  different  presumptions  of  law  as  to,  p.  397 

proof  of  express  malice,  p.  397,  398. 

what  is  evidence  to  prove  malice,  p.  393,  592. 

other  actionable  words,  p.  398. 

deliberate  sale  of  similar  papers,  p.  399. 

by  servant  in  action  for  false  character,  p.  399,  400. 

circumstances  stated  in  declaration  to  show  malice  must  be 
proved,  p.  320. 
MARRIAGE : 

loss  of,  a  temporal  damage,  p.  164, 165, 589. 
how  slated,  p.  323. 
MARSHAL: 

Earl  Court  of,  p.  432. 
MASS: 

charge  of  goina;  to,  p.  38. 
MEMBER  OF  PARLIAMENT  : 

words  of,  p.  106,  586. 

privilege  of,  p.  525,  591. 

as  to  what  he  may  be  examined,  p.  1 1 2 
MERCHANT : 

words  of,  p.  117. 
MIDWIFE: 

words  of,  p.  107,116. 
MIRACLES  OF  JESUS  CHRIST  : 

libels  against,  p.  438. 
MISPRISION  OF  FELONY 

charge  of,  p.  57. 
MISDEMEANOR: 
je  of,  p.  3( 


INDE2  609 

MITIGATION: 

of  damages,  evidence  in,  p.  403,  uDJ, 

source  whence  the  calumny  was  derived,  p.  40  • 

cause  of  suspicion,  p.  405,406. 

badness  of  plaintiff's  former  character,  p.  407. 

whether  particular  facts  tending  to  show  the  plaintiffs  guilt 
are  admissible,  p.  409. 
MITIOR  SENSUS: 

exploded  doctrine  of,  p.  45,  46,  47,  51,55. 

reason  why  the  doctrine  prevailed,  p.  52. 
MONEY : 

won  at  play,  challenge,  on  account  of,  p. 
MORALITY  : 

publications  against,  p.  447. 

are  punishable  in  the  temporal  courts,  p.  447. 

extent  of  the  offence,  p.  450. 
MURDER : 

charge  of,  p.  72. 

where  the  person  alleged  to  have  been  murdered  still  h 
p.  72,  73. 

oblique  charge  of,  p. 
MURDERER:  p.  75. 

\ 
NEGATIVE : 

in  what  cases  a  party  may  be  put  to  prove   (»  394 
NEGLIGENCE: 

defendant's  liability  for  damage  resulting  from,  p.  24  i 

libel  exposed  from,  p.  241. 
NEW  ASSIGNMENT  : 

when  necessary,  p.  350. 
NEWSPAPER  : 

slander  concerning,  p.  120. 
NEW  TRIAL: 

when  granted,  p.  413. 

time  of  moving  for,  p.  573. 

O. 

OFFICE : 

words  relating  to  extent  of  the  action,  p.  107. 

charge  of  inability  in,  p.  102,  104. 

of  corruption  in,  p.  103,  1 12. 

confidential  distinction  between  reflections  on  integrity  and 
ability,  p.  102. 

grounds  of  the  action,  p.  101 . 
OPINION  : 

words  of,  p.  58. 

P. 
PARDON : 

when  it  excludes  a  plea  of  justification,  p.  180,  589. 

11 


610  ]J\D£\ 

alter   a    conviction    for    perjury    will    not    restore    credit, 
p.  181,  590. 
PARLIAMENT  : 

libel  on  the  houses  of,  p.  478. 

privileges  of,  p.  182,  183,  478. 

words  of  member,  p.  106. 

petitioners  to,  privileged,  p.  186.    . 
PARSON : 

words  concerning,  p.  313. 
PARTIES: 

plaintiffs,  when  two  or  more  may  join,  p.  250. 

when  separate  actions  must  be  brought,  p.  251. 

words  spoken  of  husband  and  wife,  p.  251. 

actionable  words  of  the  wife  with,  with  special  damages  to  the 
husband,  p.  251,  252. 

husband  should  sue  alone  for  special  damage,  p.  260. 

the  right  to  sue  for  the  actionable  words  would  survive  to  the 
wife,  p.  260. 

defendants,  joinder  of,  p.  261. 

words  by  husband  and  wife,  p.  261,  262. 

joinder  of  parties  in  the  same  indictment,  p.  592. 
PAWNBROKER  : 

words  concerning,  p.  119. 
PEACE  OFFICER  : 

proof  of  person's  being  one,  p.  387. 
PEACE,  PUBLIC  : 

in  what  it  consists,  p.  634, 635. 

what  constitutes  an  offence  against  it,  p.  634. 
PEERS : 

words  concerning,  p.  157, 160.     See  Scan.  Mag. 
PENTATEUCH : 

libel  on,  p.  440. 
PERJURY : 

charge  of,  p.  32,  54,  75. 
PHYSICIAN  :   p.  106,  115. 

description  of,  in  declaration,  p.  312. 

proof  of  plaintiff's  being,  p.  386,  388. 
PICKING  A  POCKET  : 

charge  of,  p.  50,  75. 
PLACE : 

of  speaking  words,  when  material,  p.  326. 
PLAGUE : 

words  imputing  infection  with,  p.  98. 
PLEA: 

what  may  be  pleaded,  p.  334. 

may  explain  the  meaning  of  the  words,  p.  337. 

show  no  damage  sustained,  p.  337. 

non  damnificatus  bad,  p.  339. 

of  minority,  p.  339. 

what  must  be  pleaded. 


INDEX. 


(lit 


truth  of  the  words,  p.  181. 

of  justification  ground  on  the  truth,  p.  341 ,  592. 

must  correspond  with  the  charge  contained  in  the  declaration, 
p.  341. 

must  he  pleaded  and  proved  with  great  precision,  p.  179,  689. 

of  justification  in  general,  must  confess  the  words,  p.  328. 

must  answer  the  whole  publication  complained  of.  p.  "44,  345. 

of  statute  of  limitations,  p.  347. 

joinder  of  different  pleas,  p.  348. 
POLICY  : 

publications  contrary  to,  p.  48- . 
POSSESSION  OF  LIBEL  : 

whether  an  indictable  offence,  p.  509,592. 
POWER  : 

words  imputing,  p.  65. 
PRESUMPTION  OF  LAW: 

when  conclusive  for  the  defendant,  p.  172. 

prima  facie  in  favour  of  the  defendant,  p.  20! 

prima  facie  against  the  defendant,  p.  401. 
PRIVILEGE  : 

of  parliament,  p.  183,  541,  592. 
PROCESS  : 

summary,  on  what  founded,  p.  518. 

seizure  of  papers,  p.  544. 
declared  illegal,  p.  548. 

against  the  person,  p.  540. 

commitment  by  secretary  of  state,  p.  540. 

general  warrants,  p.  542. 
declared  illegal,  p.  542. 

Lord  Mansfield's  opinion,  p.  593. 

against  a  defendant  on  an   indictment   or  information  under 
43  Geo.  3.  c.  58.  s.l.p.  542. 
PROCURER  : 

of  publication,  p.  370. 

evidence  of  procurement,  p.  371. 
PROFESSION  : 

words  relating  to,  p.  100. 
PROFESSIONAL  DUTY  : 

when  it  will  justify  a  publication,  p.  200. 
PROHIBITION  : 

writ  of,  on  what  grounded,  p.  424. 

to  spiritual  court,  when  granted,  p.  424. 

where  offence  imputed  is  not  of  spiritual  cognizance,  p.  425. 
though  imputed  to  an  ecclesiastic,  p.  429. 

where  the  same  words  are   of  both  spiritual  and  temporal 
cognizance,  p.  429. 

where  they  are  of  temporal  cognizance  from  a  particular  cus- 
tom, p.  429. 

does  not  lie,  where  words  of  spiritual  cognizance  are  coupled 
with  mere  terms  of  abuse,  p.  426. 


t>  12  INDEX. 

though  followed  by  special  damage  p.  427. 

time  of  moving  in,  p.  433. 
PROPHECIES  : 

false,  p.  485. 
PROSECUTOR : 

not  compellable  to  restore  the  libel,  p.  573. 
PROVOCATION  : 

to  break  the  peace,  p.  491. 

where  oral  not  indictable,  unless  it  amount  to  a  challenge, 
p.  491. 

reason  for  this  distinction,  p.  595. 
PUBLIC  : 

amusement,  slander  of,  p.  120. 
PUBLICATION  : 

fact  of,  p.  350. 

evidence  of,  p.  351. 

postmark  on  a  letter,  p.  372. 

direct  or  indirect,  p.  351. 

by  proof  of  handwriting,  p.  352. 

what  necessary  to  support  an  action,  p.  171. 

by  agent,  how  proved,  p.  366,  373. 

by  a  bookseller,  p.  367,  368,  369,  370. 

by  newspaper,  p.  376. 

writer,  38  Geo.  3.  c.  77. 

evidence  under  the  statute,  p.  381,  382,  383. 

averment  of  publication,  p.  264. 

where  words  have  been  published  in  a  foreign  language, 
p.  267. 

when  inadvertent  not  criminal,  p.  241. 
PUBLIC  LICENSER : 

objections  against,  p.  5,  6. 

Dr.  Johnson's  opinion,  p.  5. 
PUNISHMENT:  p,  577. 

R. 

RECEIVING : 

stolen  goods,  charge  of  p.  37,  93. 
REGRATING  : 

charge  of,  p.  29. 
RELIGION  : 

libel  on,  p.  435. 

extent  of  the  offence,  p.  440. 

why  the  temporal  courts  interfere,  p.  436. 

a  malicious  intention  essential  to  the  offence  against,  p.  440. 
REPLICATION  : 

usual  one,  p.  349. 

a  pardon,  p.  349. 

containing  exceptions,  how  pleaded,  p.  350. 

in  what  cases  will  not  entitle  the  party  to  sue.  p.  350. 


INDEX.  613 


REPUTATION  : 

pecuniary  value  of,  p.  1. 
REVIEWERS: 

how  far  privileged,  p.  232. 
ROBBERY : 

charge  of,  p.  75,  93. 
ROGUE : 

charge  of  heing,  p.  21. 

S. 

SCANDALUM  MAGNATUM  : 

offence  of,  p.  155. 

ground  of  the  proceeding,  p.  155. 

parties  entitled  to,  p.  155, 159,160. 

by  what  words  supported,  p.  155. 

construction  of  the  statutes,  p.  160, 161, 162. 

extent  of  the  remedy  under  the  statute,  p.  158. 

baron  of  the  exchequer  within  the  statute,  p.  159. 

whether  peeress  entitled  to  sue,  p.  159. 

peer  of  Scotland  entitled,  p.  159. 

form  of  declaring,  p.  315. 

whether  the  defendant  may  justify,  p.  178,  503. 
SCHOOLMASTER  : 

words  concerning,  p.  107. 
SECRETARY  OF  STATE : 

commitment  of,  p.  593. 
SCIENTER  : 

cannot  be  traversed  in  pleading,  p.  338, 
SERVANT : 

action  by,  p.  108,  115,  223. 

must  prove  express  malice,  p.  224,  225,229. 

reason  of  this,  p.  229.     See  Malice. 
SKILL : 

words  reflecting  on,  p.  110,  116. 
SKIMMINGTON  : 

riding,  p.  153,588. 
SLANDER: 

increase  of  actions  for,  p.  13. 

uncertainty  of  former  rules  relating  to,  p.  13,  &c. 
SOLICITATION  : 

to  commit  an  illegal  act,  charge  of,  p.  22,  32,  88,  89,  91. 

such  solicitation  an  indictable  offence,  p.  490. 

procurers  by  solicitation,  when  principals,  p.  490. 
when  accessories,  p.  490. 

challenge  on  account  of  money  won  at  play.  p.  593. 
SPECIAL  CHARACTER: 

how  acquired,  p.  339. 


014  INDEX. 

how  described,  p.  384.  * 

how  proved,  p.  384. 
SPIRITUAL  OFFENCE: 
charge  of,  p.  23,  24,  26. 
courts,  jurisdiction  of,  p.  424. 

no  suit  in  special  court  can  be  maintained  on  an  indictment, 
p.  431. 
STARCHAMBER : 

doctrine  of  in  case  of  libel,  p.  507,  508. 
required  proof  of  publication,  p.  511. 
STATE  OFFENCES : 

to  be  proved  by  the  usual  rules  of  evidence,  p.  358. 
STATEMENT : 

of  the  words  in  a  declaration  or  indictment. 

the  identical  words  must  be  set  out,  p.  260. 

though  formerly  set  out  in  Latin,  p.  267. 

must  now  be  stated  in  the  original  language,  p.  267,  274. 

insufficient  to  describe  their  effect,  p.  268. 

distinction  as  to  statement  under  an  ad  tenorem,  and  under  an 

inter  alia,  p.  268. 
the  setting  them  out,  with  the  addition  of  vel  hiis  similia  in- 
sufficient, p.  270. 
must  correspond  with  the  publication  proved,  p.  271. 
whether  an  English  translation  of  foreign  words  necessary,, 
p.  274.     See  Variance. 
SURETIES  : 

whether  libellers  in  general  can  be  required  to  find  surety  of 

the  peace,  p.  524. 
for  the  good  behaviour  when  requirable,  p.  524,  526. 
words  of  absent  magistrate,  p.  527. 
party  should  be  bound  without  delay,  p.  527. 

extent  of  the  doctrine,  p.  528. 
form  of  the  commitment  for  want  of  sureties,  p.  528. 
for  mere  words  of  abuse  sureties  not  demandable,p.  528. 
when  demandable  where  no  person  in  office  is  reflected  on. 
p.  528. 
STEALING  : 

charge  of,  p.  49,  79,  80. 
STOCKBROKER : 

words  of,  p.  177. 
SUBORDINATION  . 
*  "*"    of  perjury,  charge  of,  p.  75,  93. 
SURPLUSAGE  : 

when  an  averment  considered  as,  p.  384. 
SUSPICION  : 

words  of,  p.  58,  60. 

however  strong,  will  not  amount -to  a  justification,  p.  180. 
nor  will  common  fame,  p,  180. 
SWINDLER  :  p.  23. 


INDEX.  (315 

T. 
THIEF  : 

charge  of  being  a,  p.  49,  50,  75,  79 
TRADER: 

words  of,  p.  113,  117. 

imputing  dishonesty,  p.  113. 

words  affecting  credit,  formerly  not  actionable,  unless  ihev 
imported  bankruptcy,  p.  324. 
TREASON  : 

words  imputing,  actionable,  p.  32. 

though  no  act  be  charged,  p.  57. 

overt  act  of, 

words  spoken  formerly,  held  to  amount  to,  p.  457. 

the  doctrine  questioned,  p.  458. 

words  joined  to  an  overt  act  may  explain  it,jp.  459- 

written  or  printed  publications,  p.  459. 

by  writing  against  the  king's  title,  p.  468. 

described  by  36  G.  3.  c.  7.  p.  468. 
TRESPASS : 

charge  of,  p.  16, 17,39. 
TRIAL  : 

for  the  criminal  offence,  p.  551. 

offence  as  stated  on  the  record  of  what  compounded,  p.  551 . 
TRINITY: 

offences  against  the,  p.  438. 

profanation  of,  in  stage  play  or  interlude,  p.  445. 

denial  of,  p.  445. 
TRUTH : 

of  the  matter  published. 

why  a  bar  to  damages,  p.  175. 

Sir  W.  Blackstone's  doctrine  considered,  p.  175. 

whether  a  bar  to  an  action  for  scan.  mag.  p.  179. 

not  admissible  in  evidence  unless  pleaded,  p.  328. 

formerly  admitted  where  the  charge  was  precise,  p.  329. 

general  rule,  p.  330. 

allowed  where  assertions  of  the  defendant's  are  proved  te 
show  malice,  p.  412. 

justification  allowed  in  action  by  person  charged  as  accessory 
after  the  acquittal  of  the  principal,  p.  179. 

allowed  against  plaintiff  after  his  acquittal,  p.  179. 

plaintiff  may  be  put  upon  his  trial  on   such  an  issue  found 
against  him  without  the  finding  of  a  grand  jury,  p.  179. 

plea  of.     See  Plea.     Justification. 

no  bar  to  an  indictment,  p.  496. 

ground  of  rejecting  such  a  justification,  p.  197. 

indictable  misdemeanor,  what  essential  to,  p.  497. 

the  publication  of  what  is  true  may  produce  mischief,  p.  499. 

the  truth  of  a  publication  not  the  test  of  malice  agaiust  so- 
ciety, p.  499. 


616  INDEX. 

reasons  for  admitting  in  evidence  stronger  where  the  alleged 
libel  charges  a  more  immoral  act,  p.  500. 

in  case  of  immoral  publications  the  objections  against  admit- 
ting more  forcible,  p.  501,  502. 

V. 

VARIANCES :  .'*+ 

different  kinds  of,  p.  274.  *-^ 

words  set  out  "juxta  tenorem,"  in  hsec  verba,  or  under  an 
"inter  alia,"  &c.  p.  276. 

where  "  tenor"  is  used  a  literal  variance  not  fatal,  p.  277. 

mode  of  setting  out  passages  not  continuous,  p.  278. 

alteration  of  a  single  letter  when  fatal,  p.  279. 

Lord  Mansfield's  dictum  as  to  varianc\,  p.  279. 
VENIRE : 

whence  awarded  formerly  in  case  of  a  local  justification,  p.  247. 

reason  for  this  peculiar  to  the  case  of  libei,  p.  247. 

law  altered  by  statutes  16  and'17  C.  2.  and  4  Anne,  p.  248. 

construction  of  these,  p.  249. 
VENUE : 

in  civil  action,  p.  245. 

when  changeable,  p.  245,  246. 

in  scan.  mag.  p.  246. 

W 

WARRANT  : 

See  Process. 
WATCHMAKER  : 

words  of,  p.  110. 
WHORE : 

when  the  term  is  actionable,  p.  23,  25, 68. 
WITCH: 

when  actionable,  p.  82. 
WITCHCRAFT  :  p.  38. 
WITNESS  : 

privilege  of,  in  giving  evidence,  p.  185. 

when  he  may  read  the  words  from  a  paper,  p.  351 . 

or  refresh  his  memory  from  minutes,  p.  351. 
WORDS  : 

spoken,  when  indictable,  p.  494,  593. 

mere  words  of  nbuse  not  indictable,  p.  491,  593. 
WRITING  : 

libel,  whether  the  bare  act  is  criminal,  p.  511. 
WRONG : 

defendant's,  of  what  compounded,  p.  170, 171. 

mere  overt  act,  p.  170.     See  Publication. 

malicious  intention,  p.  170.     See  Malice. 


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